INTERNATIONAL HUMANITARIAN LAW Jus ad bellum
– refers to the conditions under which States may resort
Shey’s Notes
Professor: Atty. Angel Nuñez
Compiled by: Sheryl G. Odasan-Reyes
I. PRELIMINARIES
A. INTRODUCTION
1. Definition
International humanitarian law (IHL)
 It is the branch of public international law which
governs armed conflicts to the end that the use of
violence is limited and that human suffering is
mitigated or reduced by regulating or limiting the
means of military operations and by protecting those
who do not or no longer participate in the hostilities.
 It is the collection o treaties and acceptable
practices which govern:
- the conduct of war
- the status, treatment, rights and obligations of
belligerents, neutral and allied states, institutions
and individuals involved in armed conflicts
whether military personnel, health and relief
providers, members of the media and civilians
 It consists of rules that, in times of armed conflict,
seek – for humanitarian reasons – to protect
persons who are not or are no longer directly
participating in the hostilities, and to restrict means
and methods of warfare.
 IHL consists of international treaty or customary
rules (i.e. rules emerging from State practice and
followed out of a sense of obligation) that are
specifically meant to resolve humanitarian issues
arising directly from armed conflict, whether of an
international or a non-international character.
 It is sometimes also referred to as the law of armed
conflict or the law of war (jus in bello).
Jus in bello
– is the law that governs the way in which warfare is
conducted.
– regulates the conduct of parties engaged in an armed
conflict. IHL is synonymous with jus in bello; it seeks to
minimize suffering in armed conflicts, notably by
protecting and assisting all victims of armed conflict to
the greatest extent possible.
IHL is purely humanitarian, seeking to limit the suffering
caused. It is independent from questions about the
justification or reasons for war, or its prevention, covered
by jus ad bellum.
to war or to the use of armed force in general. The
prohibition against the use of force amongst States and
the exceptions to it (self-defence and UN authorization
for the use of force), set out in the United Nations
Charter of 1945, are the core ingredients of jus ad
bellum (see the box titled “On the Prohibition against
War”).
The primary purpose of IHL is to restrict the means and
methods of warfare that parties to a conflict may employ
and to ensure the protection and humane treatment of
persons who are not, or no longer, taking a direct part in
the hostilities. In short, IHL comprises those rules of
international law which establish minimum standards of
humanity that must be respected in any situation of
armed conflict.
2. Core Principles
 Principle of Humanity
A general principle of international law that provides
that civilians are hors de combat and that even as
regards to combatants, superfluous injury or
unnecessary suffering is prohibited. The principle
protects combatants from unnecessary suffering,
and individuals who are no longer, or never were,
active participants in hostilities by mandating that
they be treated humanely at all times
The principle of humanity provides an essential
counter-balance to the equally fundamental principle
of military necessity. The operation of these two
principles ensures that in all situations of armed
conflict there is a pragmatic balance between
authority to take hostile measures to subdue an
opponent and the obligation to limit the suffering
associated with armed conflict to that which is
genuinely necessary to accomplish this purpose.
This balance lies at the very core of the law of
armed conflict, and is reflected in virtually every
international agreement related to the conduct of
hostilities.
 Prohibition against causing superfluous injury or
unnecessary suffering
Employing weapons, projectiles and material and
methods of warfare of a nature to cause superfluous
injury or unnecessary suffering is prohibited. This
prohibition refers specifically to combatants: it says
that weapons of certain kinds are prohibited
because they harm combatants in unacceptable
ways. Although the rule is generally accepted, there
is disagreement about the proper way to decide
whether a weapon causes superfluous injury or
unnecessary suffering. The International Court of
Justice defined unnecessary suffering as “harm
greater than that unavoidable to achieve legitimate
military objectives” (Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, 1996). For
instance, the rule against targeting soldiers’ eyes
with lasers, as laid down in Protocol IV to the
Convention on Certain Conventional Weapons (see
Question 12) was inspired by the belief that
deliberately causing permanent blindness in this
fashion amounted to the infliction of superfluous
injury or unnecessary suffering.
St Petersburg Declaration
– declaration renouncing the use, in time of war, of
explosive projectiles under 400 grammes weight,
November 29 / December 11, 1868. It succeeded
the First Geneva Convention of 1864. It was a
predecessor of the well-known Hague Conventions
of 1899 and 1907.
As early as 1868, the St Petersburg Declaration
recognized:
“That the only legitimate object […] 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;
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.”
It is the reasoning which inspired one of the most
basic principles of IHL – the restriction of certain
types of weapons considered as excessively cruel.
The United Nations Convention on Certain
Conventional Weapons (CCW or CCWC), concluded
at Geneva on October 10, 1980, and entered into
force in December 1983, seeks to prohibit or restrict
the use of certain conventional weapons which are
considered excessively injurious or whose effects
are indiscriminate. The full title is Convention on
Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May Be
Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects. The convention covers:
Prohibited weapons:
- landmines
- booby traps
- incendiary weapons
- blinding laser weapons
- expanding bullets
- weapons that injure by non-detectable fragments
 Principle of Distinction
The basic rule of distinction requires that the parties
to an armed conflict distinguish at all times between
civilian persons and civilian objects on the one hand,
and combatants and military objectives on the other.
A party to an armed conflict may direct an attack
only against combatants or military objectives.
Neither the civilian population nor individual civilians
may be attacked unless and for such time as they
directly participate in hostilities (see box). Attacks
must be strictly limited to military objectives and may
not be directed against civilian objects. In so far as
objects are concerned, military objectives are limited
to those objects that by their nature, location,
purpose or use make an effective contribution to
military action and whose partial or total destruction,
capture or neutralization, in the circumstances ruling
at the time, offers a definite military advantage.
Typical military objectives are establishments,
buildings and positions where enemy combatants,
and their matériel and armaments, are located, and
military means of transportation and communication.
When civilian objects are used for military purposes
(e.g. a civilian train that is used to transport weapons
and combatants) they may be regarded as military
objectives.
 Principle of Proportionality
Attacks directed against a combatant or a military
objective must be in accordance with the
proportionality rule. This means that it is prohibited
to launch an attack that is likely to cause incidental
loss of civilian life, injury to civilians, and/or damage
to civilian objects that would be excessive in relation
to the concrete and direct military advantage
anticipated. In other words, a military objective may
be attacked only after an assessment leading to the
conclusion that civilian losses are not expected to
outweigh the military advantage foreseen.
Principle of Military Necessity
The “principle of military necessity” permits
measures which are actually necessary to
accomplish a legitimate military purpose and are
not otherwise prohibited by international
humanitarian law. In the case of an armed conflict
the only legitimate military purpose is to weaken
the military capacity of the other parties to the
conflict.
Military necessity generally runs counter to
humanitarian exigencies. Consequently the
purpose of humanitarian law is to strike a balance
between military necessity and humanitarian
exigencies.
 Principle of Precaution
A party to an armed conflict must take constant care
to spare civilians or civilian objects when carrying
 out military operations. The party conducting an
attack must do everything feasible to verify that the
targets are military objectives. It must choose means
and methods of attack that avoid, or at least keep to
a minimum, the incidental harm to civilians and
civilian property. It must refrain from launching an
attack if it seems clear that the losses or damage
caused would be excessive in relation to the
concrete and direct military advantage anticipated.
Effective warning must be given of attacks that may
affect the civilian population, unless circumstances
do not permit. Precautions must also be taken
against the effects of attacks. For example, military
objectives must not, as far as possible, be situated
in the vicinity of civilian populations and civilian
objects; all other necessary precautions must also
be taken.
3. Sources
Just like any other body of international law, IHL can be
found in three distinct sources: treaties, custom, and the
general principles of law.
In addition, case-law, doctrine and, in practice, “soft law”
play an increasingly important role in the interpretation of
individual rules of IHL.
1. Treaty law
Today, IHL is one of the most densely codified
branches of international law. In practice, therefore,
the most relevant sources of IHL are treaties
applicable to the armed conflict in question.
For example, in situations of international armed
conflict, the most important sources of applicable IHL
would be the four 1949 Geneva Conventions, their
Additional Protocol I, and weapons treaties, such as
the 1980 Convention on Certain Conventional
Weapons or the 2008 Convention on Cluster
Munitions. Treaty IHL applicable in non-international
armed conflicts is significantly less developed, the
most important sources being common Article 3 and,
in certain circumstances, Additional Protocol II. Given
that most contemporary armed conflicts are non-
international, there is a growing perception that certain
areas of treaty IHL governing these situations may
require further strengthening, development or
clarification.
The advantage of treaty IHL is that it is relatively
unambiguous. The scope of applicability of the treaty
is defined in the text itself, the respective rights and
obligations are spelled out in carefully negotiated
provisions, which may be supplemented with express
reservations or understandings, and the States
Parties are clearly identified through the act of
ratification or accession. This does not preclude
questions of interpretation from arising later,
particularly as the political and military environment
changes over time, but it provides a reliable basis for
determining the rights and obligations of belligerents
and for engaging in dialogue with them on their
compliance with IHL.
2. Custom
While treaty law is the most tangible source of IHL, its
rules and principles are often rooted in custom, namely
general State practice (usus) accepted as law (opinio
juris).
Such practice has consolidated into customary law,
which exists alongside treaty law and independently of
it. Customary law does not necessarily predate treaty
law; it may also develop after the conclusion of a treaty
or crystallize at the moment of its conclusion. For
example, a belligerent State may have ratified neither
the 1980 Convention on Certain Conventional
Weapons nor Additional Protocol I, which prohibits the
use of “weapons, projectiles and material and methods
of warfare of a nature to cause superfluous injury or
unnecessary suffering.” There is, however, a
universally recognized customary prohibition against
such means and methods of warfare. Thus, that State
would be prohibited from using such munitions under
customary IHL.
The advantage of customary IHL is that it is a dynamic
body of law constantly evolving in tandem with State
practice and legal opinion. Customary law can
therefore adapt much more quickly to new challenges
and developments than treaty law, any change or
development of which requires international
negotiations followed by the formal adoption and
ratification of an agreed text. Also, while treaties apply
only to those States that have ratified them, customary
IHL is binding on all parties to an armed conflict
irrespective of their treaty obligations. Customary law
is relevant not only where an existing IHL treaty has
not been ratified by a State party to an international
armed conflict; it is particularly relevant in situations of
non-international armed conflict, because these are
regulated by far fewer treaty rules than international
armed conflicts, as explained above. The
disadvantage of customary law is that it is not based
on a written agreement and, consequently, that it is not
easy to determine to what extent a particular rule has
attained customary status. In reality, State practice
tends to be examined and customs identified by
national and international courts and tribunals tasked
with the interpretation and adjudication of international
law. The ICRC’s extensive study on customary IHL is
also a widely recognized source of reference in this
respect.
The fact that customary law is not written does not
mean that it is less binding than treaty law. The
difference lies in the nature of the source, not in the
binding force of the resulting obligations. For example,
the International Military Tribunal at Nuremberg, in the
trials following World War II, held not only that the
1907 Hague Regulations themselves had attained
customary nature and were binding on all States
irrespective of ratification and reciprocity, but also that
individuals could be held criminally responsible and
punished for violating their provisions as a matter of
customary international law. Similarly, the ICTY has
based many of its judgments on rules and principles of
IHL not spelled out in the treaty law applicable to the
case at hand but considered to be binding as a matter
of customary law.
3. General principles of law
The third source of international law, next to treaties
and custom, consists of “the general principles of law
recognized by civilized nations.” There is no agreed
definition or list of general principles of law. In
essence, the term refers to legal principles that are
recognized in all developed national legal systems,
such as the duty to act in good faith, the right of self-
preservation and the non-retroactivity of criminal law.
General principles of law are difficult to identify with
sufficient accuracy and therefore do not play a
prominent role in the implementation of IHL. Once
authoritatively identified, however, general principles of
law can be of decisive importance because they give
rise to independent international obligations.
Most notably, the ICJ has on several occasions
derived IHL obligations directly from a general
principle of law, namely “elementary considerations of
humanity,” which it held to be “even more exacting in
peace than in war.”
Based on this principle, the ICJ has argued that the
IHL obligation of States to give notice of maritime
minefields in wartime applies in peacetime as well, and
that the humanitarian principles expressed in common
Article 3 are binding in any armed conflict, irrespective
of its legal classification and of the treaty obligations of
the parties to the conflict. Moreover, the ICTY has
argued that “elementary considerations of humanity”
are “illustrative of a general principle of international
law” and “should be fully used when interpreting and
applying loose international rules” of treaty law.
In this context, it would be remiss not to refer to the
Martens Clause, which provides that, in cases not
regulated by treaty law, “populations and belligerents
remain under the protection and empire of the
principles of international law, as they result from the
usages established between civilized nations, from the
laws of humanity and the requirements of the public
conscience.”
The Martens Clause
It was first adopted at the First Hague Peace
Conference of 1899 and has since been reformulated
and incorporated in numerous international
instruments. While the extent to which specific legal
obligations can be derived directly from the Martens
Clause remains a matter of controversy, the Clause
certainly disproves assumptions suggesting that
anything not expressly prohibited by IHL must
necessarily be permitted.
The Martens Clause was introduced into the preamble
to the 1899 Hague Convention II – Laws and Customs
of War on Land.
The clause first appeared in the preamble to the 1899
Hague Convention (II) on the laws and customs of war
on land. It was inspired by and took its name from
Professor Friedrich Fromhold Martens, the Russian
delegate at the 1899 Hague Peace Conferences. The
exact meaning of the Martens clause is disputed, but it
is generally interpreted like this: ‘anything not explicitly
prohibited by IHL is not automatically permissible’.
Belligerents must always remember that their actions
must be in conformity with the principles of humanity
and the dictates of public conscience.It reads as
follows:
Until a more complete code of the laws of war is
issued, the High Contracting Parties think it right to
declare that in cases not included in the
Regulations adopted by them, populations and
belligerents remain under the protection and
empire of the principles of international law, as
they result from the usages established between
civilized nations, from the laws of humanity and
the requirements of the public conscience.
— Convention with respect to the laws of war on
land (Hague II), 29 July 1899.
The Clause appears in a slightly modified form in the
1907 Hague conventions:
Until a more complete code of the laws of war has
been issued, the High Contracting Parties deem it
expedient to declare that, in cases not included in
the Regulations adopted by them, the inhabitants
and the belligerents remain under the protection
and the rule of the principles of the law of nations,
as they result from the usages established among
civilized peoples, from the laws of humanity, and
the dictates of the public conscience.
— Laws and Customs of War on Land (Hague IV),
18 October 1907
4. The role of “soft law,” case-law and doctrine
While treaties, custom and general principles of law
are the only sources of international law, the rules and
principles derived from these sources often require
more detailed interpretation before they can be applied
in practice.
For example, while the law makes clear that IHL
applies only in situations of “armed conflict,” the
precise meaning of that term must be determined
through legal interpretation. Similarly, IHL provides
 that civilians are entitled to protection from direct
attack “unless and for such time as they take a direct
part in hostilities.” Again, a decision as to whether a
particular civilian has lost his or her protection
depends on the meaning of the term “direct
participation in hostilities.”
Of course, guidance on the interpretation of IHL can
be given by the States themselves as the legislators of
international law. This may take the form of unilateral
reservations or declarations, or resolutions of
multilateral organizations, but also of support for non-
binding instruments. Examples of such “soft law”
instruments relevant for the interpretation of IHL
include the United Nations Guiding Principles on
Internal Displacement (1998) and the United Nations
Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and
Serious Violations of International Humanitarian
Law (2005).
Absent such State-driven guidance, the task of
interpreting IHL falls, first and foremost, to international
courts and tribunals mandated to adjudicate cases
governed by IHL, such as the ad hoc international
criminal tribunals established for specific conflicts, the
International Criminal Court and, of course, the ICJ. In
addition, the teachings of the most highly qualified
publicists are also recognized as a subsidiary means
of determining the law.
Also, in view of the special mandate of the ICRC, its
Commentaries on the 1949 Geneva Conventions and
their Additional Protocols are regarded as a
particularly authoritative interpretation of these
treaties.
4. Scope
IHL applies only during armed conflict, domestic or
international.
Once an armed conflict exists, any action taken for
reasons related to that conflict is governed by IHL.
International armed conflict
- occurs between two states
Non-international armed conflicts
- take place between States and non-governmental
armed groups, or between such groups only
Legally speaking, there are no other types of armed
conflict. Internal disturbances and tensions – riots,
isolated and sporadic acts of violence and similar acts –
do not amount to armed conflict.
B. HISTORICAL BACKGROUND
1. Origin
Efforts have been made, since ancient times, to protect
individuals from the worst consequences of war.
However, it was not until the second half of the 19th
century that international treaties regulating warfare,
including rights and protection for victims of armed
conflicts, emerged.
Who were the founders of contemporary IHL?
Henry Dunant
Two men played a vital role in the emergence of
contemporary IHL: Henry Dunant, a Swiss businessman,
and Guillaume-Henri Dufour, a Swiss army officer.
In 1859, while travelling in Italy, Dunant witnessed the
grim aftermath of the battle of Solferino. After returning to
Geneva he recounted his experiences in a book entitled
A Memory of Solferino, published in 1862.
His propositions:
- creation of an independent society
- that the society be given neutral treatment
- symbols
General Dufour, who knew something of war himself, lost
no time in lending his active moral support for Dunant’s
ideas, notably by chairing the 1864 diplomatic conference
at which the original Geneva Convention was adopted.
In 1863, together with Gustave Moynier, Louis Appia
and Théodore Maunoir, Dunant and Dufour founded
the ‘Committee of Five’, an international committee for
the relief of the military wounded. This would become
the International Committee of the Red Cross in 1876.
How did contemporary IHL come into being?
The Swiss government, at the prompting of the five
founding members of the ICRC, convened a diplomatic
conference in 1864. It was attended by 16 States, who
adopted the Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field. This was
the birth of modern IHL.
What innovations did the 1864 Convention bring about?
The Convention, which was a multilateral treaty, codified
and strengthened ancient, fragmentary and scattered
laws and customs of war protecting wounded and sick
combatants and those caring for them. It was chiefly
characterized by:
• standing written rules of universal scope to protect
wounded and sick combatants
• its multilateral nature, open to all States
• the obligation to extend care to wounded and sick
military personnel without discrimination (i.e.
without any distinction between friend or foe)
 • respect for and marking of medical personnel,
transports and equipment using an emblem (red
cross on a white background).
IHL Prior to its codification
It would be a mistake to think of the founding of the Red
Cross in 1863, or the adoption of the original Geneva
Convention in 1864, as the starting point of IHL as we
know it today. Just as there is no society of any sort that
does not have its own set of rules, so there has virtually
never been a war that did not have rules, vague or
precise, covering the conduct of hostilities, their outbreak
and their end.
The Lieber Code
From the beginning of warfare to the advent of
contemporary IHL, over 500 cartels, codes of conduct,
covenants and other texts designed to regulate hostilities
have been recorded. They include the Lieber Code,
which came into force in April 1863. The Code is
important because it was the first attempt to codify
existing laws and customs of war. Unlike the original
Geneva Convention (adopted a year later), however, the
Code did not have the status of a treaty, as it was
intended solely for soldiers fighting on the Union side in
the American Civil War.
Known as – General Orders 100, Instructions for the
Government of Armies of the United States in the Field
Date of Adoption – 24 April 1863
Place of Execution – United States
Number of Articles – 157 Articles
Purpose –
Initially, when the Code was codified its purpose was
an attempt to codify the laws of war at the height of
American Civil war. It proposed set of rules to govern
the conduct of hostilities by the United States armies
against the Confederate States of America.
Background –
Lieber Code was codified, in the context of the
American Civil War, by Dr. Francis Lieber, a professor
of Columbia University in New York. The general-in-
chief of the Union forces, General Halleck, asked
Professor Lieber on how to distinguish legitimate
enemy combatant, who were entitled to prisoner of war
treatment, from unlawful guerrillas who could be
punished. Professor Lieber was appointed, together
with four generals, to propose amendment or changes
to the Articles of War, and a code of regulations for the
government of armies in the field, as authorized by the
laws and usages of war. The generals decided that
they would undertake review of the Articles of War,
and left the codification of the laws and usages of war
to Prof. Lieber. The Code was revised by a board of
officers and promulgated by then President Lincoln.
The Lieber Code represents the first attempt to codify
the laws of war.
Salient Features –
• The Code simplified the complex range of
customary rules into a more simplified guide.
• Lieber Code clarified the legal concept of “military
necessity,” and gave detailed guidance on what is
legal principle did and did not permit;
• The Code invoked the principle of humanity in
several provisions;
• The Code distinguished between „combatants‟
and „non-combatants,‟ embracing the principle of
distinction;
• Lieber Code did not allow racial discrimination, as
it asserted “law of nation knows no distinction;”
• The Code contained detailed rules on the
treatment of prisoners of war and who can benefit
therefrom;
• It laid down several peremptory prohibition,
particularly the use of poison in any way, or
resorting to torture, the use of enemy uniforms or
emblems was also prohibited;
• The Code covered almost all legal issues an army
officer was likely to encounter in the field, including
treatment of prisoners of war, the punishment of
the spies and guerrillas, proper use of white flag of
truce, the conclusion of temporary cease-fire
agreements with the enemy, and the treatment of
enemy civilians and civilian property in the
occupied territory.
Significance –
The Lieber Code strongly influenced the further
codification of the laws of war and the adoption of
similar regulations by other states.
The Code‟s impact on international community in effort
to codify laws of wars has been noteworthy. In
particular, it formed the basis of a draft convention
adopted at an international conference held in
Brussels in 1974. However, such convention was
never ratified and failed to be legally binding.
Its contents simulated the adoption of Hague
Conventions on land warfare of 1899 and 1907.
2. First International War Crime Prosecuted
Peter von Hagenbach
The trial of Peter von Hagenbach by an ad hoc tribunal
of the Holy Roman Empire in 1474, was the first
“international” war crimes trials and also of command
responsibility.
Peter von Hagenbach was the governor of Breisach,
now a city in Germany, and under his responsibility, a
reign of terror was imposed on Breisach’s inhabitants.
The town however revolted and von Hagenbach was
captured and put on trial. The court which tried von
Hagenbach consisted of 28 judges from the allied states
(namely Austria, Berne, France and the towns and
knights of the Upper Rhine). The prosecutor charged
that the accused had “trampled under foot the laws of
God and man”. The court found the accused guilty,
deprived him of his knighthood, and condemned him to
death.
Most legal scholars see this trial as a landmark event
also for another reason, because it was the first
international recognition of commanders’ obligations to
act lawfully. Peter Von Hagenbach defended himself by
arguing that he was only following orders from his
master Charles the Bold, the Duke of Burgundy.
However, he was convicted of crimes he as a knight was
deemed to have a duty to prevent (command
responsibility). All scholars conclude that this is the first
recorded case to reject the defense of superior orders.
With respect to the international character of the trial:
one can have one’s doubts as the judges from the Von
Hagenbach tribunal were all drawn from the allied states
of one empire, namely the Holy Roman Empire.
Nevertheless, by 1474, this empire had degenerated to
such an extent that relations between its members were
actually quite international and not domestic in nature.
With the rise of the nation state, the possibilities for
another international criminal tribunal soon vanished.
This meant that it became common to prosecute crimes
which were seen as international crimes (think of piracy)
at the domestic level, by national and not by international
courts. In fact, a devastating world war was needed to
give the idea of the international criminal tribunal a truly
important boost.
Prosecutor vs kupreskic
Facts
On 16 April 1993, Bosnian Croat forces attacked the
village of Ahmići in Bosnia and Herzegovina. The
operation was a deliberate attack on the Muslim civilians
of Ahmići, aiming to cleanse the area of its Bosnian
Muslim inhabitants. The attack resulted in the deaths of
over a hundred Bosnian Muslims, injuring numerous
others and destroying Muslim houses and mosques.
In April 1993, the Bosnian Croat forces attacked the
village, aiming to remove the Muslim inhabitants through
the commission of crimes against them. The attack
resulted in the deaths of over a hundred Muslim
inhabitants, numerous others were wounded and Muslim
houses and mosques were destroyed. Trial Chamber II
convicted Zoran Kupreškić, Mirjan Kupreškić, Vlatko
Kupreškić, and Drago Josipović were members of the
Bosnian Croat forces (HVO). Vladimir Šantić was the
local commander of the military police and of an anti-
terrorist unit of the Croatian Military Police called the
“Jokers”.
Judgment
The six accused were charged in connection with their
alleged role in the attack on the village of Ahmici in
central Bosnia on 16 April 1993, and the massacre of
116 inhabitants of the village, including women and
children. Twenty-four other villagers were wounded. The
attack also resulted in the destruction of 169 houses and
two mosques. The victims were Bosnian Muslim
civilians.
"A WELL-PLANNED AND WELL-ORGANISED KILLING
OF CIVILIAN MEMBERS OF AN ETHNIC GROUP"
In his summary of the Judgement read out in court,
Judge Cassese stated that,
"The Trial Chamber is satisfied, on the evidence before it
in this case, that this was not a combat operation.
Rather, it was a well-planned and well-organised killing
of civilian members of an ethnic group, the Muslims, by
the military of another ethnic group, the Croats. The
primary purpose of the massacre was to expel the
Muslims from the village, by killing many of them, by
burning their houses, slaughtering their livestock, and by
illegally detaining and deporting the survivors to another
area. The ultimate goal of these acts was to spread
terror among the population so as to deter the members
of that particular ethnic group from ever returning to their
houses."
Judge Cassese also commented that,
"Indisputably, what happened on 16 April in Ahmici has
gone down in history as comprising one of the most
vicious illustrations of man’s inhumanity to man. Today,
the name of that small village must be added to the long
list of previously unknown hamlets and towns that recall
abhorrent misdeeds and make all of us shudder with
horror and shame: Dachau, Oradour sur Glane, Katijn,
Marzabotto, Soweto, My Lai, Sabra and Shatila, and so
many others."
The Presiding Judge pointed out that,
"At the end of the trial, we have come to the conclusion
that, with the possible exception of one of the accused,
this Trial Chamber has not tried the major culprits, those
who are most responsible for the massacre of 16 April
1993, those who ordered and planned, and those who
carried out the very worst of the atrocities – against
innocent civilians…We thus had to confine ourselves to
the six persons accused by the Prosecutor before our
Trial Chamber, to determine whether and to what extent
they participated in the crimes perpetrated in Ahmici."
Sentencing
Having considered all the evidence and the arguments,
the Judgement of the Trial Chamber is as follows:
Zoran Kupreskic, HVO soldier
GUILTY of persecution as a crime against humanity
NOT GUILTY with regard to murder and inhumane acts
as crimes against humanity
Sentenced to 10 years imprisonment
Mirjan Kupreskic, HVO soldier
GUILTY of persecution as a crime against humanity
NOT GUILTY with regard to murder and inhumane acts
as crimes against humanity
Sentenced to 8 years imprisonment
Vlatko Kupreskic, Police Operations Officer
GUILTY of aiding and abetting persecution as a crime
against humanity
NOT GUILTY with regard to murder and inhumane acts
as crimes against humanity and murder and cruel
treatment as violations of the laws or customs of war
Sentenced to 6 years imprisonment
Drago Josipovic, HVO soldier
GUILTY of persecution as a crime against humanity
GUILTY of murder and inhumane acts as crimes against
humanity
NOT GUILTY (for reasons of law) with regard to
violations of the laws or customs of war (murder and
cruel treatment)
Sentenced to 10 years, 15 years and 10 years
imprisonment respectively.
Sentences are to be served concurrently (15 years
imprisonment)
Vladimir Santic, Military Police Commander and
Commander of the "Jokers"
GUILTY of persecution as a crime against humanity
GUILTY of murder and inhumane acts as crimes against
humanity
NOT GUILTY (for reasons of law) of violations of the
laws or customs of war (murder and cruel treatment)
Sentenced to 25 years, 15 years and 10 years
respectively.
Sentences are to be served concurrently (25 years
imprisonment)
Acquittal
Dragan Papic was charged under count 1 in the
indictment with persecution as a crime against humanity.
However, the Trial Chamber found that, "none of the
Prosecution evidence is sufficient to establish that you
were an active participant in the attack on Ahmici…or in
any of the events preceding this attack." The Trial
Chamber therefore acquitted Papic.
The following is a short list of significant legal findings in
the Judgement. Paragraph numbers are included where
appropriate.
Nature of the attack: Not a combat operation. Rather, a
"well-planned and well-organised killing of civilians." No
finding on the international/internal nature of the conflict
(as no grave breach charges are involved). Status of the
victims: Mostly civilians, off-duty soldiers and some
people spontaneously taking arms to defend
themselves. As such, Ahmici can be regarded as an
undefended village (para. 512). No tu quoque
(retaliation) defence available: Even if proven, similar
attacks by the Muslim forces on Croats would not justify
the attack carried out on Ahmici (paras. 125, 511 and
515ff). Reprisals against civilians are absolutely
forbidden in any situation, including with regard to
civilians located in the combat zones (para. 527ff).
Widespread and indiscriminate attacks are unjustifiable
and illegal (para. 513); under certain circumstances
collateral damage may also be regarded as illegal:
"reasonable care must be taken in attacking military
objectives so that civilians are not needlessly injured
through carelessness," (para. 524). The protection of
civilians indeed represents the cornerstone of
humanitarian law. Consequently, with regard to collateral
damage, although single attacks might not per se be
illegal, their cumulative effect might render them so
(para. 526): "in case of repeated attacks, all or most of
them falling within the grey area between indisputable
legality and unlawfulness, it might be warranted to
conclude that the cumulative effect of such acts entails
that they may not be in keeping with international law.
Indeed, this pattern of military conduct may turn out to
jeopardise excessively the lives and assets of civilians,
contrary to the demands of humanity." Policy element of
crimes against humanity: Crimes against humanity as
not necessarily state-sponsored but as organically state-
linked (para. 551 and 555). Persecution: the crime of
persecution stands on its own and must not be linked to
any other crime of the Statute to be punishable (para.
581). No link with State policy required (para. 625).
Actus reus (material element) of persecution (para. 615):
Persecution can involve a broad range of discriminatory
acts, and generally consist of a series of acts rather than
a single act which must be considered in total rather
than in isolation. Mens rea (mental element) and
distinction with the crime of genocide (para.634-6): The
mens rea though lower than that applicable to genocide,
is of the same nature. "To put it differently, when
persecution escalates to the extreme form of willful and
deliberate acts designed to destroy a group or part of a
group, it can be held that such persecution amounts to
genocide." (para. 636) Definition (para. 621 + 627):
Persecution is "a gross or blatant denial, on
discriminatory grounds, of a fundamental right, laid down
in international customary or treaty law, reaching the
same level of gravity as the other acts prohibited in
Article 5." (para. 627) 8. Purposes of sentencing (para.
848-849): Retribution, deterrence, end to impunity
mentality and rehabilitation.
3. Progressive Development of IHL
IHL has two branches:
• the ‘Law of Geneva’, which is the body of rules that
protects victims of armed conflict, such as military
personnel who are hors de combat and civilians who are
not or are no longer directly participating in hostilities
• the ‘Law of The Hague’, which is the body of rules
establishing the rights and obligations of belligerents in
the conduct of hostilities, and which limits means and
methods of warfare.
These two branches of IHL draw their names from the
cities where they were initially codified. With the
adoption of the Protocols of 8 June 1977 additional to
the Geneva Conventions, which combine both branches,
that distinction has become a matter of historical and
scholarly interest.
C. LEGAL BASIS (CODES, CONVENTIONS,
DECLARATIONS, REGULATIONS)
Is there a system of precedent in IHL?
- None, although previous decisions are highly
regarded
The rule of stare decisis does not apply. Application of
IHL is in a case to case basis.
International humanitarian law (IHL)
 It is the branch of public international law which
governs armed conflicts to the end that the use of
violence is limited and that human suffering is
mitigated or reduced by regulating or limiting the
means of military operations and by protecting those
who do not or no longer participate in the hostilities.

THE HAGUE CONVENTIONS OF 1899 AND 1907

Hague Conventions of 1899 and 1907 are a

series of international treaties and declarations
negotiated at two international peace conferences at The
Hague in the Netherlands. Along with the Geneva
Conventions, the Hague Conventions were among the
first formal statements of the laws of war and war crimes
in the body of secular international law.

annexed regulations are a set of conventions primarily

regulating the conduct of hostilities. The Conventions
represent the basic and commonly accepted rules of
engagement – the legal framework covering the means
and methods of warfare. They remain a key source of
international law, accepted universally as customary
international law.

Code, which was signed and issued by U.S. President

Abraham Lincoln to the Union Forces of the United
States on 24 April 1863, during the American Civil War.

erning
disarmament, the laws of war and war crimes. A major
effort in both conferences was the creation of a binding
international court for compulsory arbitration to settle
international disputes, which was considered necessary
to replace the institution of war.
II. RULES OF CONDUCT OF HOSTILITIES
A. COMBATANTS AND NON-COMBATANTS
Combatants:
Members of the armed forces of a Party to a conflict [Art.
3(2), Protocol 1]. They have the right to participate
directly and indirectly in hostilities. [Art 43(2) Protocol 1]
Note: Only combatants are allowed to engage in
hostilities.
A combatant is allowed to use force, even to kill, and will
not be held personally responsible for his acts, as he
would be where he to the same as a normal citizen
[Gasser]
Hors de combat: Under Art. 41(2) of Protocol I, a
person is hors de combat if he:
(1) Is in the power of an adverse party to the conflict;
(2) He clearly expresses an intention to surrender; or
(3) He has been rendered unconscious or is otherwise
incapacitated by wounds or sickness, and is therefore
incapable of defending himself, provided that in any of
these cases, he abstains from any hostile act and does
not attempt to escape.
Persons hors de combat shall be protected and treated
humanely without any adverse distinction. Their right to
life and physical and moral integrity shall be respected
Protected Persons:
They are those who enjoy or are entitled to protection
under the Geneva Conventions. Categories of protected
persons include:
(1) The wounded, the sick, and shipwrecked;
(2) Prisoners of War
(3) Civilians
For purposes of protection, civilians are further classified
as:
(1) Civilians who are victims of conflict in countries
involved
(2) Civilians in territories of the enemy;
(3) Civilians in occupied territories;
(4) Civilians internees
B. METHODS AND MEANS OF WARFARE AND
COMBAT
Means – weapons
Methods – tactics
METHODS OF WARFARE
A number of methods of warfare are specifically
prohibited under treaty and customary IHL. A few
examples are given below.
Denial of quarter
Ordering that no quarter will be given and threatening an
adversary therewith or conducting hostilities on this basis
is prohibited. An adversary’s forces must be given an
opportunity to surrender and be taken prisoner. Wounded
soldiers must be respected and protected.
Pillage
Pillage – the forcible seizure of private property by an
invading or conquering army from the enemy’s subjects –
is prohibited.
Starvation
Starving the civilian population as a method of warfare is
prohibited. Attacking, destroying, removing or rendering
useless objects indispensable to the survival of the civilian
population is also prohibited.
Perfidy
Killing, injuring or capturing an adversary by resort to
perfidy is prohibited. Article 37 of Additional Protocol I
defines ‘perfidy’ as “acts inviting the confidence of an
adversary to lead him to believe that he is entitled to, or
is obliged to accord, protection under the rules of
international law applicable in armed conflict, with intent
to betray that confidence.” This includes, for example,
feigning injury or sickness in order to attack an enemy
combatant. Ruses of war, i.e. acts intended to confuse
the enemy that do not violate international law, and that
respect the prohibition against perfidy, are not
prohibited. This would include, for instance, the use of
camouflage, decoys, mock operations, and
misinformation.
C. SPECIFIC WEAPONS REGIME
- no specific definition under IHL
- weapon system used to deploy and deliver weapons
- combination of personnel and weapons
D. PROHIBITIONAGAINST DIRECT AND
INDISCRIMINATE ATTACK
The prohibition against indiscriminate attacks is
derived from the principle of distinction.
Indiscriminate attacks are:
• those that are not directed at a specific military
objective (e.g. a soldier firing in all directions
without aiming at a particular military objective,
thus endangering civilians)
• those that employ a method or means of warfare
that cannot be directed at a specific military
objective (e.g. long-range missiles that cannot be
aimed precisely at their targets)
• those that employ a method or means of warfare,
the effects of which cannot be limited (e.g. a 10-
tonne bomb used to destroy a single building).