 B.

Sources of IHL

‘Treaty law’ and ‘customary international law’ are the main sources of international
humanitarian law. Treaties, such as the four Geneva Conventions of 1949 and their
Additional Protocols of 1977, are written sources in which States formally establish certain
rules. Customary international law derives from “a general practice accepted as law”. The
main sources of IHL are: 1- Treaties: Treaties, such as the four Geneva Conventions of 1949
and the two Additional Protocols of 1977, are written conventions in which States formally
establish certain rules. Treaties may also take the form of protocols, covenants,
agreements, and so on. They impose rules only on those States that have expressed their
consent to be bound by them. The Geneva Conventions and their Additional Protocols
contain the most important rules limiting the barbarity of war. They protect people who are
not taking part in the fighting (civilians, medical personnel, aid workers) and those who can
no longer fight (the wounded, sick and shipwrecked troops, prisoners of war). 2- Customary
International Law: Customary international law is made up of rules that are considered
“general practice accepted as law” and that exist independently of treaty law. Customary
IHL is of crucial importance in today’s armed conflicts because it fills gaps left by treaty law
applicable to both international and non-international conflicts and so strengthens the
protection afforded to victims. International law is made up of both treaty law and the rules
of what is known as customary international law. Treaties are written conventions in which
States formally establish certain rules. Customary international law, on the other hand, is
not written but derives from “a general practice accepted as law”. A customary rule reflects
the practice of states; furthermore, the international community must consider that there is
a legal obligation to engage in a practice.
 A. Military necessity

Military necessity, the claim that, because of extreme circumstances, security concerns
override competing considerations. A proposed course of action therefore ought to be
pursued despite the considerable costs exacted by its execution. Though the term military
necessity can be used to describe any instance in which political, social, or economic
calculations are superseded by reasons of war, it is most commonly employed in situations
in which security considerations are said to trump ethical restraints on the conduct of war.
The claim of military necessity is usually invoked when an actor defies the principles of just-
war theory, such as a state claiming that extreme military circumstances have forced it to
abandon the principles of discrimination or minimum force. Any declaration of military
necessity entails two separate and equally problematic claims. First, it assumes that the
proposed military course of action is inevitable, such that a failure to take the action would
lead to certain defeat. Second, it assumes that the goal pursued is indispensable, such that
failure to achieve the goal would have disastrous implications. The concept of military
necessity has been criticized by just-war theorists, who consider that ethical considerations
must intervene in debates about warfare. This response is characterized by two extreme
positions. On the one hand, absolutists reject the concept of military necessity as a farce,
concocted by elites or military organizations to justify whatever is necessary to win a war,
reduce the risks of losing, or even reduce the costs of war. Between these two extremes are
those who want to strike a balance between the requirements of humanity and those of
military necessity. They require that transgressions of the rules of war be preceded by
calculations that take into account the reasonable risks that military actors can be expected
to assume, the value of victory, the costs of defeat, and the extent to which moral precepts
are placed in jeopardy. These moderate critics do leave room for justifications of military
necessity in cases of extreme emergency, such as threats to the survival of a community as
opposed to mere defeat or even occupation.
 C. Neutrality in war

Neutrality has long been seen as impartiality in war and is codified as such in The Hague and
Geneva Conventions. It is a legal status arising from the abstention of a state from all
participation in a war between other states, the maintenance of an attitude of impartiality
toward the belligerents, and the recognition by the belligerents of this abstention and
impartiality. Under international law, this legal status gives rise to certain rights and duties
between the neutral state and the belligerents. The laws concerning the rights and duties of
neutrality are contained, for the most part, in the Declaration of Paris of 1856, Hague
Convention V, 1907 (neutrality in land war), and Hague Convention XIII, 1907 (neutrality in
maritime war). One of the first recommendations of the last convention was that, when war
breaks out between certain powers, each nation wishing to remain impartial should
normally issue either a special or general declaration of neutrality. Such a declaration,
however, is not required by international law. A neutral state may, during the course of the
hostilities, repeal, change, or modify its position of neutrality, provided that such alterations
are applied without bias to all belligerents.

D. Protected persons :

Protected persons is a legal term under international humanitarian law and refers to
persons who are under specific protection of the 1949 Geneva Conventions, their 1977
Additional Protocols, and customary international humanitarian law during an armed
conflict. The legal definition of different categories of protected persons in armed conflicts
is found in each 1949 Geneva Conventions and also in 1977 Additional Protocols. The extent
of protection and obligations of belligerent states and parties depends on the type of the
armed conflict (international or not international) as well as on the category of protected
persons in terms of their age , sex ,participation in the armed conflict and personal
situation. Minimum rights and fundamental guarantees are granted by the 1977 Additional
Protocols I and II to the persons not covered by the 1949 Geneva Conventions,
independently of the character of the conflict (international or national).Moreover, the
Additional Protocol II extended the protection of existing protected persons in non-
international armed conflicts. The fourth Convention excludes the nationals of some States
from the category of protected persons, because presumably their State of origin can
protect them through the ordinary diplomatic means that apply in times of peace and
continue to apply during an armed conflict: First, in the own territory of a party to the
conflict, the category of protected persons excludes nationals of a co-belligerent (allied) or
neutral State as long as the State of nationality maintains normal diplomatic representation
with the State in whose hands they are in. Second, in occupied territory, the category of
protected persons excludes only nationals of a co-belligerent (allied) State provided that the
State of nationality maintains normal diplomatic representation with the Occupying Power.
The nationals of neutral states remain protected persons in occupied territory.

E. Combatants and Non-combatants

Combatant is the legal status of an individual who has the right to engage in hostilities
during an armed conflict. The legal definition of "combatant" is found at article 43(2) of
Additional Protocol I (AP1) to the Geneva Conventions of 1949. It states that "Members of
the armed forces of a Party to a conflict (other than medical personnel and chaplains
covered by Article 33 of the Third Convention) are combatants, that is to say, they have the
right to participate directly in hostilities." Consequently, on the other hand combatants, as a
rule, are legal targets themselves for the opposite side regardless the specific circumstances
at hand, in other words, they can be attacked regardless of the specific circumstances
simply due to their status, so as to deprive their side of their support. Under the
International Humanitarian Law (combatants may be classified in one of two categories:
privileged or unprivileged. Non-combatant is a term of art in the law of war and
international humanitarian law to refer to civilians who are not taking a direct part in
hostilities; persons, such as combat medics and military chaplains, who are members of the
belligerent armed forces but are protected because of their specific duties (as currently
described in Protocol I of the Geneva Conventions, adopted in June 1977); combatants who
are placed hors de combat; and neutral persons, such as peacekeepers, who are not
involved in fighting for one of the belligerents involved in a war. This particular status was
first recognized under the Geneva Conventions with the First Geneva Convention of 1864.
Article 3 in the general section of the Geneva Conventions states that in the case of armed
conflict not of an international character (occurring in the territory of one of the High
Contracting Parties) that each Party to the conflict shall be bound to apply, as a minimum,
the following provisions to "persons taking no active part in the hostilities" (non-
combatants).

G. Grave breaches

The meaning of 'grave breaches' is 'serious violations' and the object and purpose of
international humanitarian law is protection of humanity as the victim of armed conflict—
international or internal. Grave breaches only apply to armed conflicts of an international
character (or to a state of occupation) and not to internal armed conflicts. The second main
characteristic of the grave breaches regime concerns the status of those protected by it, in
that the protection afforded thereunder is limited to specific categories of individuals
(‘protected persons’) and properties (‘protected properties’). This article discusses the
chapeau elements of war crimes contained in the statute of the ad hoc tribunal for the
former Yugoslavia which constitute grave breaches of the Geneva Conventions, including
wilful killing, torture and inhuman treatment including biological experiments, wilfully
causing great suffering or serious injury to body or health, and wilfully depriving a prisoner
of war or a civilian of the rights of a fair and regular trial. In addition to the grave breaches
defined in the preceding paragraphs and in the Conventions, the following shall be regarded
as grave breaches of this Protocol, when committed wilfully and in violation of the
Conventions or the Protocol: (a) the transfer by the occupying Power of parts of its own
civilian population into the territory it occupies, or the deportation or transfer of all or parts
of the population of the occupied territory within or outside this territory, in violation of
Article 49 of the Fourth Convention; (b) unjustifiable delay in the repatriation of prisoners of
war or civilians; (c) practices of apartheid and other inhuman and degrading practices
involving outrages upon personal dignity, based on racial discrimination; (d) making the
clearly-recognized historic monuments, works of art or places of worship which constitute
the cultural or spiritual heritage of peoples and to which special protection has been given
by special arrangement, for example, within the framework of a competent international
organization, the object of attack, causing as a result extensive destruction thereof, where
there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b),
and when such historic monuments, works of art and places of worship are not located in
the immediate proximity of military objectives; (e) depriving a person protected by the
Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial.

H. Implementations of IHL

The term implementation covers all measures that must be taken to ensure that the
rules of international humanitarian law are fully respected. However, it is not sufficient
merely to apply these rules once fighting has begun. There are also measures that must be
taken in both wartime and peacetime. These measures are necessary to ensure that: > both
civilians and the military personnel are familiar with the rules of humanitarian law; > the
structures, administrative arrangements and personnel required for compliance with the
law are in place; > violations of humanitarian law are prevented, and punished when they
do occur. Such measures are essential to ensure that the law is truly respected. Under
international humanitarian law – that is, the 1949 Geneva Conventions, their Additional
Protocols of 1977 relating to the protection of victims of armed conflicts, the 1954 Hague
Convention on Cultural Property and the latter's Second Protocol of 1999 – a range of
measures must be taken. The main ones are: 1) to have the Conventions and Protocols
translated into the national language(s); 2) to spread knowledge of their provisions as
widely as possible both within the armed forces and the general population; 3) to repress all
violations listed as such in the above-mentioned instruments and, in particular, to adopt
criminal legislation that punishes war crimes; 4) to ensure that persons, property and places
protected by the law are properly identified, marked and protected; 5) to adopt measures
to prevent the misuse of the red cross, the red crescent and other symbols and emblems
provided for in the Conventions and Protocols; 6) to ensure that protected persons enjoy
judicial and other fundamental guarantees during armed conflict; 7) to appoint and train
persons qualified in international humanitarian law, in particular legal advisers within the
armed forces.

H. Explain perfidy

Perfidy is a form of deception in which one side promises to act in good faith (such as by
raising a flag of truce) with the intention of breaking that promise once the unsuspecting
enemy is exposed (such as by coming out of cover to take the "surrendering" prisoners into
custody). Perfidy constitutes a breach of the laws of war and so is a war crime, as it
degrades the protections and mutual restraints developed in the interest of all parties,
combatants and civilians. Perfidy is specifically prohibited under the 1977 Protocol I
Additional to the Geneva Conventions of 12 August 1949, which states: Article 37. –
Prohibition of perfidy 1. It is prohibited to kill, injure or capture an adversary by resort to
perfidy. 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, shall constitute perfidy. The
following acts are examples of perfidy: (a) The feigning of an intent to negotiate under a flag
of truce or of a surrender; (b) The feigning of an incapacitation by wounds or sickness; (c)
The feigning of civilian, non-combatant status; and (d) The feigning of protected status by
the use of signs, emblems or uniforms of the United Nations or of neutral or other States
not Parties to the conflict. b. 2. Ruses of war are not prohibited. Such ruses are acts that
are intended to mislead an adversary or to induce him to act recklessly but which infringe
no rule of international law applicable in armed conflict and which are not perfidious
because they do not invite the confidence of an adversary with respect to protection under
that law. The following are examples of such ruses: the use of camouflage, decoys, mock
operations and misinformation.

I. Principle of proportionality

Proportionality is a core principle in international law, which provides that the legality of an
action shall be determined depending on the respect of the balance between the objective
and the means and methods used as well as the consequences of the action. This principle
implies an obligation to appreciate the context before deciding on the legality or the
illegality of an action. This assessment is the responsibility of those who act. In case of
dispute or doubt, tribunals can assess the facts and their legality a posteriori.
Proportionality is particularly important to balance the argument of military necessity in
assessing the legality of the use of armed force. Particularly, it applies in cases of individual
or collective self-defense, in cases of recourse to armed force by a State to restore order
and public safety in times of internal disturbances, and in situations of international or non-
international conflicts. International criminal law also provides that sanctions must be
proportionate to the gravity of the crime. International law does not authorize States to
resort to armed force except in cases of self-defense or aggression. The branch of law
regulating the right to resort to armed force is commonly referred to as jus ad bellum . Since
1945, it is incorporated in the Charter of the United Nations and its collective security
mechanism. But this concept of self-defense only allows measures that are “proportional”
to the armed attack and necessary to respond to it. International humanitarian law
applicable to armed conflicts ( jus in bello ) uses the principle of proportionality to limit the
damages caused by military operations on civilian population and objects. Once a State has
resorted to the use of armed force, jus in bello kicks in to regulate and restrain the use of
force in times of armed conflict.
J. Neutrality in war

Neutrality describes the formal position taken by a State which is not participating in an
armed conflict or which does not want to become involved. This status entails specific rights
and duties. On the one hand, the neutral State has the right to stand apart from and not be
adversely affected by the conflict. On the other hand, it has a duty of non-participation and
impartiality. The sources of the international law of neutrality are customary international
law and, for certain questions, international treaties, in particular the Paris Declaration of
1856, the 1907 Hague Convention No. V respecting the Rights and Duties of Neutral Powers
and Persons in Case of War on Land, the 1907 Hague Convention No. XIII concerning the
Rights and Duties of Neutral Powers in Naval War, the four 1949 Geneva Conventions and
Additional Protocol I of 1977. The United Nations Charter of 1945 and Security Council
decisions based on the Charter may in certain circumstances modify the law of neutrality.
For example, Article 2(5) of the Charter requires UN Member States to give the UN every
assistance in any action it takes, and Article 25 requires UN members to accept and comply
with the decisions of the Security Council; the enforcement measures spelled out in Chapter
VII can also have an impact, as they are governed by particular rules which differ from those
of the law of neutrality

I. Protected persons

Protected persons is a legal term under international humanitarian law and refers to
persons who are under specific protection of the 1949 Geneva Conventions, their 1977
Additional Protocols, and customary international humanitarian law during an armed
conflict. The legal definition of different categories of protected persons in armed conflicts
is found in each 1949 Geneva Conventions and also in 1977 Additional Protocols. The extent
of protection and obligations of belligerent states and parties depends on the type of the
armed conflict (international or not international) as well as on the category of protected
persons in terms of their age (adult/child), sex (man/woman), participation in the armed
conflict (combatant/prisoner of war/civil person) and personal situation (e.g. shipwrecked,
sick, wounded, etc.). Minimum rights and fundamental guarantees are granted by the 1977
Additional Protocols I and II to the persons not covered by the 1949 Geneva Conventions,
independently of the character of the conflict (international or national). Moreover, the
Additional Protocol II extended the protection of existing protected persons in non-
international armed conflicts (persons deprived of liberty, wounded and sick, medical and
religious personnel, civilian population). There are two types of obligations incumbent to
the signatory nations under Article 12 of the 1st Geneva Convention: • respect,
protect and rescue wounded and sick militaries; • provide treatment and care without
any discrimination between them. In addition to that, the Additional Protocol I of the
Geneva Convention establishes a unitary protection for all sick, wounded and shipwrecked
independently of their military or civil status. In return, sick and wounded persons shall
refrain from any hostile behaviour to benefit from this protection. a. In case of necessity,
belligerent powers can appeal to the charity of the civilian population. That being said, the
civilian population shall only “respect these wounded and sick, and in particular abstain
from offering them violence”, but at the same time can not be prosecuted and convicted
“for having nursed wounded or sick”.

J. Hors de combat

Hors de combat (French: [ɔʁ də kɔ̃ba]; lit. 'out of combat') is a French term used in
diplomacy and international law to refer to persons who are incapable of performing their
combat duties during war. Examples include persons parachuting from their disabled
aircraft, as well as the sick, wounded, detained, or otherwise disabled. Persons hors de
combat are normally granted special protections according to the laws of war, sometimes
including prisoner-of-war status, and therefore officially become non-combatants. Under
the 1949 Geneva Conventions, unlawful combatants hors de combat are granted the same
privilege and to be treated with humanity while in captivity but unlike lawful combatants,
they are subject to civilian trial and punishment (which may include capital punishment if
the detaining power has such a punishment for the crimes they have committed). Protocol I
to the Geneva Conventions defines: A person is hors de combat if: b. (a) he is in the power
of an adverse Party; c. (b) he clearly expresses an intention to surrender; or d. (c) he
has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and
therefore is incapable of defending himself; D)provided that in any of these cases he
abstains from any hostile act and does not attempt to escape. Provided that in any of these
cases he abstains from any hostile act and does not attempt to escape, he may not be made
the object of attack. A fundamental rule of international humanitarian law is that persons
who are hors de combat must not be attacked and must be treated humanely.

K. Humane treatment

The actual meaning of “humane treatment” is not spelled out, although some texts refer to
respect for the “dignity” of a person or the prohibition of “ill-treatment” in this context. The
requirement of humane treatment is an overarching concept. It is generally understood that
the detailed rules found in international humanitarian law and human rights law give
expression to the meaning of “humane treatment”. The rules in Chapters 33–39 contain
specific applications of the requirement of humane treatment for certain categories of
persons: the wounded, sick and shipwrecked, persons deprived of their liberty, displaced
persons, women, children, the elderly, the disabled and infirm. However, these rules do not
necessarily express the full meaning of what is meant by humane treatment, as this notion
develops over time under the influence of changes in society. This is shown, for example, by
the fact that the requirement of humane treatment has been mentioned in international
instruments since the mid-19th century, but the detailed rules which stem from this
requirement have developed since then, and may do so still further. The obligation to treat
prisoners of war humanely was already recognized in the Lieber Code, the Brussels
Declaration and the Oxford Manual and was codified in the Hague Regulations. The
requirement of humane treatment for civilians and persons hors de combat is set forth in
common Article 3 of the Geneva Conventions, as well as in specific provisions of all four
Conventions. This requirement is recognized as a fundamental guarantee by both Additional
Protocols I and II. The requirement of humane treatment is set forth in numerous military
manuals. It has been reaffirmed in national and international case-law. Human rights law is
similarly based on the principle of humane treatment of persons. In particular, human rights
instruments stress the requirement of humane treatment and respect for human dignity of
persons deprived of their liberty. In its General Comment on Article 4 of the International
Covenant on Civil and Political Rights, the UN Human Rights Committee declared Article 10,
which requires that persons deprived of their liberty be treated with humanity and with
respect for the inherent dignity of the human person, to be non-derogable and therefore
applicable at all times.
 An armed conflict is in progress between a colonial government and a “Patriotic
Liberation Front” representing a part of the local population. Indiscreetly persons on both
sides are being killed; Innocent civilians are being ill-treated, Families are being forcedly
dispersed; Inhabitants are being driven out from their villages; Houses are set on fire; and,
Children are being deported. Explain, how in these circumstances, the obligation to
distinguish between combatants and non-combatants is to be respected and applied. Give
your reasons.

According to the fact of the Ques here we can see that, there is a colonial Govt and Patriotic Liberation
Front two parties where the armed conflict arises and so many damages had been occurred. There are
two parties arise where the obligation and treatment with combatants and non combatant also arise.
Any members of armed forces are combatant and any combatant captured by the adverse party is a
prisoner of war. Article 13(2) of Additional Protocol II prohibits making the civilian population as such, as
well as individual civilians, the object of attack. The prohibition on directing attacks against civilians is
also contained in Amended Protocol II to the Convention on Certain Conventional Weapons. It is also set
forth in Protocol III to the Convention on Certain Conventional Weapons, which has been made
applicable in non-international armed conflicts pursuant to an amendment of Article 1 of the
Convention adopted by consensus in 2001. The Ottawa Convention banning anti-personnel landmines
states that the Convention is based, inter alia, on “the principle that a distinction must be made
between civilians and combatants”. The principle of distinction between civilians and combatants was
first set forth in the St. Petersburg Declaration, which states that “the only legitimate object which
States should endeavor to accomplish during war is to weaken the military forces of the enemy”. The
Hague Regulations do not as such specify that a distinction must be made between civilians and
combatants, but Article 25, which prohibits “the attack or bombardment, by whatever means, of towns,
villages, dwellings, or buildings which are undefended”, is based on this principle. The principle of
distinction is now codified in Articles 48, 51(2) and 52(2) of Additional Protocol I, to which no
reservations have been made. According to Additional Protocol I, “attacks” means “acts of violence
against the adversary, whether in offence or in defense”.

In the Kassem case in 1969, Israel’s Military Court at Ramallah recognized the immunity of civilians from
direct attack as one of the basic rules of international humanitarian law. There are, moreover, many
official statements which invoke the rule, including by States not, or not at the time, party to Additional
Protocol I.The rule has also been invoked by parties to Additional Protocol I against non-parties. In their
pleadings before the International Court of Justice in the Nuclear Weapons case, many States invoked
the principle of distinction. In its advisory opinion in the Nuclear Weapons case, the Court stated that
the principle of distinction was one of the “cardinal principles” of international humanitarian law and
one of the “intransgressible principles of international customary law”
The principle of distinction between civilians and combatants was first set forth in the St. Petersburg
Declaration, which states that “the only legitimate object which States should endeavour to accomplish
during war is to weaken the military forces of the enemy”. The Hague Regulations do not as such
specify that a distinction must be made between civilians and combatants, but Article 25, which
prohibits “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings
which are undefended”, is based on this principle. The principle of distinction is now codified in Articles
48, 51(2) and 52(2) of Additional Protocol I, to which no reservations have been made. According to
Additional Protocol I, “attacks” means “acts of violence against the adversary, whether in offence or in
defence”.

In the Kassem case in 1969, Israel’s Military Court at Ramallah recognized the immunity of civilians from
direct attack as one of the basic rules of international humanitarian law. There are, moreover, many
official statements which invoke the rule, including by States not, or not at the time, party to Additional
Protocol I. The rule has also been invoked by parties to Additional Protocol I against non-parties. In their
pleadings before the International Court of Justice in the Nuclear Weapons case, many States invoked
the principle of distinction. In its advisory opinion in the Nuclear Weapons case, the Court stated that
the principle of distinction was one of the “cardinal principles” of international humanitarian law and
one of the “intransgressible principles of international customary law”.

Article 13(2) of Additional Protocol II prohibits making the civilian population as such, as well as
individual civilians, the object of attack. The prohibition on directing attacks against civilians is also
contained in Amended Protocol II to the Convention on Certain Conventional Weapons.

In addition, this rule is included in other instruments pertaining also to non-international armed
conflicts.Military manuals which are applicable in or have been applied in non-international armed
conflicts specify that a distinction must be made between combatants and civilians to the effect that
only the former may be targeted. To direct attacks against civilians in any armed conflict is an offence
under the legislation of numerous States.

This rule is sometimes expressed in other terms, in particular as the principle of distinction between
combatants and non-combatants, whereby civilians who do not take a direct part in hostilities are
included in the category of non-combatants. Alleged violations of this rule have generally been
condemned by States, irrespective of whether the conflict was international or non-international.
Similarly, the UN Security Council has condemned or called for an end to alleged attacks against civilians
in the context of numerous conflicts, both international and non-international, including in Afghanistan,
Angola, Azerbaijan, Burundi, Georgia, Lebanon, Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan, the
former Yugoslavia and the territories occupied by Israel.

The ICRC has called on parties to both international and non-international armed conflicts to respect the
distinction between combatants and civilians.
 Briefly explain and critically evaluate the nature and extent of protection available under
IHL. How is this protection ensured?

International humanitarian law protects a wide range of people and objects during armed
conflict. The Geneva Conventions and their Additional Protocols protect the sick, wounded and
shipwrecked not taking part in hostilities, prisoners of war and other detained persons, as well
as civilians and civilian objects. The Geneva Conventions have their origin in the experiences of
Henry Dunant at the battle of Solferino in 1859. He was horrified by the neglect of the sick and
wounded on the battlefield, and with four colleagues organized the diplomatic conference that
led to the adoption of the First Geneva Convention in 1864. The principles established then
influenced the treaties that followed thereby creating the body of international humanitarian
law that exists today. At the core of these principles was the idea of protected persons and
objects. The First Convention concerned itself primarily with the care of the sick and wounded
on the battlefield. The medical services helping them were to be protected from attack and
respected as neutral personnel assisting the sick and wounded without discrimination. The
convention established the red cross emblem to be used to identify and protect medical
personnel from attack. States committed themselves to respect the emblem and those
protected by it. The emblem also protects medical equipment, such as vehicles and medical
buildings as long as they are not being used for military purposes. Between the two World
Wars, the conventions were extended to cover prisoners of war. These were protected against
inhumane or degrading treatment. IHL now contains detailed rules on the treatment of
prisoners of war and others detained as result of an armed conflict. The ICRC acquired a unique
mandate under the Geneva Conventions giving it access to places of detention to assess the
condition of those deprived of their freedom. It makes detailed and confidential
recommendations to the detaining authorities and on occasions assists in improving facilities.
Medical staff form part of ICRC visiting teams and visits continue on a regular basis. ICRC visits
to people deprived of their freedom cover some 70 countries and reach almost 500,000
detainees each year. The consolidated Geneva Conventions of 1949 extended specific
protection to civilians, who had suffered extensively during World War II, often from
deliberated targeting. Protection to civilians, especially against the effects of hostilities, was
also developed through the adoption of the Additional Protocols in 1977. Parties to a conflict
are prohibited to target civilians and required to take all feasible precautions to avoid attacks
that result in civilian casualties. They are also required to avoid defensive measures that put
civilians in danger. Civilians may not be used as protective shields or forcibly displaced.
Unnecessary attacks on their means of livelihood such as farms, housing, transport and health
facilities, are forbidden. IHL also mentions specific groups among civilians such as women, who
are protected from sexual abuse, and children, whose special needs must be taken into account
by combatants. In some situations, the distinction between peaceful civilians and those directly
participating hostilities has caused problems. This is one of many areas of IHL where the ICRC is
working with experts to bring about greater clarity, and as a result, greater respect for the
rules. IHL protects refugees, internally displaced people and those who have gone missing as a
result of armed conflict. It also protects humanitarian workers such as ICRC staff and the
personnel of individual Red Cross or Red Crescent Societies. These organizations also benefit
from the use of the Red Cross, Red Crescent or red crystal protective emblems recognized by
the Geneva Conventions.
Q. What is meant by IHL? Briefly explain the nature and content of IHL with suitable
examples. Briefly explain and critically evaluate the basic principles of IHL. Are they relevant
today? Explain with suitable examples.

What is meant by IHL

IHL is a set of rules that seek to limit the humanitarian consequences of armed conflicts. It is
sometimes also referred to as the law of armed conflict or the law of war (jus in bello). 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.

The nature and content of IHL

 It is the body of law that applies in times of armed conflict: International humanitarian
law, the law of war, or the law of armed conflict.

 It is also sometimes described as the human rights law of armed conflict.

 The law of armed conflict (IHL) is the law that regulates the conduct of armed conflicts
(jus in bello).

 It comprises the Geneva Conventions and the Hague Conventions, as well as

subsequent treaties, case law, and customary international law.

 It comprises the Geneva Conventions and the Hague Conventions, as well as

subsequent treaties, case law, and customary international law.

 It defines the conduct and responsibilities of belligerent nations, neutral nations and
individuals engaged in warfare, in relation to each other and to protected persons,
usually meaning civilians.
  Serious violations of international humanitarian law are called war crimes.

 It protects persons who are not or are no longer participating in the hostilities and
restricts the means and methods of warfare.

 IHL, (jus in bello) regulates the conduct of forces when engaged in war or armed conflict.

 It is distinct from (jus ad bellum) which regulates the conduct of engaging in war or
armed conflict and includes crimes against peace and of war of aggression.

 Together the jus in bello and jus ad bellum comprise the two strands laws of war
governing all aspects of international armed conflicts.

 In a broad sense, the humanitarian provisions cover the conduct of military operations,
(methods and means of combat) as well as the protection of the victims of armed
conflicts (wounded, sick, prisoners, and civilian populations etc.

 Strictly speaking, IHL is based on the Geneva Conventions of 1949 and the Additional
Protocols 1977.

The basic principles of IHL

Equality of belligerents and non-reciprocity

IHL is specifically designed to apply in situations of armed conflict. The belligerents therefore
cannot justify failure to respect IHL by invoking the harsh nature of armed conflict; they must
comply with their humanitarian obligations in all circumstances. A State exercising its right to
self-defence or rightfully trying to restore law and order within its territory must be as careful
to comply with IHL as an aggressor State or a non-State armed group having resorted to force in
violation of international or national law, respectively (equality of belligerents). Moreover, the
belligerents must respect IHL even if it is violated by their adversary (non-reciprocity of
humanitarian obligations).3 Belligerent reprisals are permitted only under extremely strict
conditions and may never be directed against persons or objects entitled to humanitarian
protection.

Balancing military necessity and humanity

IHL is based on a balance between considerations of military necessity and of humanity. On the
one hand, it recognizes that, in order to overcome an adversary in wartime, it may be militarily
necessary to cause death, injury and destruction, and to impose more severe security measures
than would be permissible in peacetime. On the other hand, IHL also makes clear that military
necessity does not give the belligerents carte blanche to wage unrestricted war.4 Rather,
considerations of humanity impose certain limits on the means and methods of warfare, and
require that those who have fallen into enemy hands be treated humanely at all times.5 The
balance between military necessity and humanity finds more specific expression in a number of
core principles briefly outlined below.

Distinction

The cornerstone of IHL is the principle of distinction. It is based on the recognition that “the
only legitimate object which States should endeavour to accomplish during war is to weaken
the military forces of the enemy,” whereas “[t]he civilian population and individual civilians
shall enjoy general protection against dangers arising from military operations.” Therefore, the
parties to an armed conflict must “at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives and accordingly shall direct
their operations only against military objectives.”

Precaution

The principle of distinction also entails a duty to avoid or, in any event, minimize the infliction
of incidental death, injury and destruction on persons and objects protected against direct
attack. Accordingly, IHL requires that, “[i]n the conduct of military operations, constant care
shall be taken to spare the civilian population, civilians and civilian objects.”

Proportionality
Where the infliction of incidental harm on civilians or civilian objects cannot be avoided, it is
subject to the principle of proportionality. Accordingly, those who plan or decide on an attack
must refrain from launching, or must suspend, “any attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated.”

Unnecessary suffering

IHL not only protects civilians from the effects of hostilities, it also prohibits or restricts means
and methods of warfare that are considered to inflict unnecessary suffering or superfluous
injury on combatants. Accordingly, in the conduct of hostilities, it is prohibited “to employ
weapons, projectiles and material and methods of warfare of a nature to cause superfluous
injury or unnecessary suffering.

Humane treatment

One of the most fundamental rules of IHL is that all persons who have fallen into the power of
the enemy are entitled to humane treatment regardless of their status and previous function or
activities. Accordingly, common Article 3, which is considered to reflect a customary “minimum
yardstick” for protection that is binding in any armed conflict, states: “Persons taking no active
part in the 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, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.”

Although IHL expressly permits parties to the conflict to “take such measures of control and
security in regard to [persons under their control] as may be necessary as a result of the
war,”16 the entitlement to humane treatment is absolute and applies not only to persons
deprived of their liberty but also, more generally, to the inhabitants of territories under enemy
control.
IHL is one of the most powerful tools the international community has at its disposal to
ensure the safety and dignity of people in times of war. It seeks to preserve a measure of
humanity amidst conflict, with the guiding principle that even in war there are limits. IHL
governs the conduct of hostilities by the parties to a conflict and protects persons in enemy
hands. It also:
• requires the parties to a conflict to distinguish between combatants and civilians, and to
refrain from attacking civilians;
• prohibits or limits the use of weapons that are particularly cruel or that do not distinguish
between combatants and civilians;
• requires the parties to a conflict to care for the wounded and sick and to protect medical
personnel;
• requires the parties to a conflict to ensure that the dignity of prisoners of war and civilian
internees is preserved, in particular by allowing visits by ICRC delegates.
Q. What is the relationship between international human rights law and international
humanitarian law? Explain with suitable examples in reference to IHL.

IHL and international human rights law are complementary bodies of international law that
share some of the same aims. Both IHL and human rights law strive to protect the lives, the
health and the dignity of individuals, albeit from different angles – which is why, while very
different in formulation, the essence of some of the rules is similar. For example, both IHL and
human rights law prohibit torture or cruel treatment, prescribe basic rights for persons subject
to criminal process, prohibit discrimination, contain provisions for the protection of women and
children, and regulate aspects of the right to food and health. There are however important
differences between them: their origins, the scope of their application, the bodies that
implement them, and so on.

Origins

IHL, the origins of which are ancient, was codified in the second half of the 19th century, under
the influence of Henry Dunant, the founding father of the International Committee of the Red
Cross. Human rights law is a more recent body of law: it had its origins in certain national
human rights declarations influenced by the ideas of the Enlightenment (such as the United
States Declaration of Independence in 1776 and the French Declaration of the Rights of Man
and of the Citizen in 1789). It was only after the Second World War that human rights law
emerged, under the auspices of the United Nations, as a branch of international law.

Temporal scope of application

While IHL applies exclusively in armed conflict, human rights law applies, in principle, at all
times, i.e. in peacetime and during armed conflict. However, unlike IHL, some human rights
treaties permit governments to derogate from certain obligations during public emergencies
that threaten the life of the nation. Certain human rights can never be derogated from: among
them, the right to life, the prohibition against torture or cruel, inhuman or degrading treatment
or punishment, the prohibition against slavery and servitude and the prohibition against
retroactive criminal laws.
Geographical scope of application

Another major difference between IHL and human rights law is their extraterritorial reach. That
IHL governing international armed conflicts applies extraterritorially is not a subject of
controversy, given that its purpose is to regulate the conduct of one or more States involved in
an armed conflict on the territory of another. The same reasoning applies in non-international
armed conflicts with an extraterritorial element: the parties to such conflicts cannot be
absolved of their IHL obligations when the conflict reaches beyond the territory of a single
State. Human rights bodies generally admit the extraterritorial application of human rights law
when a State exercises control over a territory (e.g. occupation) or a person (e.g. detention).
Human rights case law is unsettled, however, on the extraterritorial application of human rights
norms governing the use of force.

Personal scope of application

IHL aims to protect persons who are not or are no longer taking direct part in hostilities. It
protects civilians and combatants hors de combat, such as the wounded, the sick and the
shipwrecked or prisoners of war. Human rights law, developed primarily for peacetime, applies
to all persons within the jurisdiction of a State. Unlike IHL, it does not distinguish between
combatants and civilians or provide for categories of ‘protected person’.

Parties bound by IHL and human rights law

IHL binds all parties to an armed conflict and thus establishes an equality of rights and
obligations between the State and the non-State side for the benefit of everyone who may be
affected by their conduct (an essentially ‘horizontal’ relationship). Human rights law explicitly
governs the relationship between a State and persons who are on its territory and/or subject to
its jurisdiction (an essentially ‘vertical’ relationship), laying out the obligations of States vis à vis
individuals across a wide spectrum of conduct. Thus, human rights law binds only States, as
evidenced by the fact that human rights treaties and other sources of human rights standards
do not create legal obligations for non-State armed groups.

Substantive scope of application

IHL and human rights law share common substantive rules (such as the prohibition of torture),
but they also contain very different provisions. IHL deals with many issues that are outside the
purview of human rights law, such as the status of ‘combatants’ and ‘prisoners of war’, the
protection of the red cross and red crescent emblems and the legality of specific kinds of
weapon. Similarly, human rights law deals with aspects of life that are not regulated by IHL,
such as the freedom of the press, the right to assembly, to vote, to strike, and other matters.
Furthermore, there are areas that are governed by both IHL and human rights law, but in
different – and sometimes contradictory – ways. This is especially the case for the use of force
and detention.
Distinguish between non-international armed conflict and international armed conflict with
suitable examples. Is there a possibility of a non-international armed conflict becoming an
international armed conflict? Give reasons.

IHL distinguishes between international and non-international armed conflict.

International armed conflicts are those in which one or more States resort to the use of armed
force against another State. Wars of national liberation, under certain conditions, and situations
of occupation are regarded as international armed conflicts. International armed conflicts are
governed by the four Geneva Conventions and Additional Protocol I.

Non-international armed conflicts are restricted to the territory of a single State and involve
either governmental armed forces fighting one or more non-State armed groups, or such
groups fighting each other. The rules applicable to non-international armed conflict have a
more limited scope than those governing international armed conflict. These rules are set out in
Article 3 common to the four Geneva Conventions and in AP II. However, customary law
expands the protection provided by certain rules of IHL to all types of armed conflict, including
non-international conflicts.

IHL applies once the conditions for an armed conflict or occupation are met on the ground –
even if a state of conflict is not recognized as such by one of the parties and regardless of
whether the occupation encounters armed resistance. IHL applies equally to all sides,
irrespective of who started the fighting and, in the case of international armed conflict, even if
one of the belligerent States is not party to the Geneva Conventions or Additional Protocol I.

The distinction between international and non-international conflict is not always clear-cut. In
recent years, conflicts have arisen that contain elements of both. A case-by-case approach is
therefore recommended to determine which normative framework is applicable.

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IHL treaties distinguish between two types of armed conflict: (a) international armed conflicts,
which occur between two or more States, and (b) non-international armed conflicts, which take
place between States and non-governmental armed groups, or between such groups only. This
dichotomy between international and non-international armed conflicts is a result of political
history rather than military necessity or humanitarian need. For centuries, sovereign States
have regulated their relations in both peace and war through treaties and custom, a tradition
based on mutual recognition of national sovereignty and international legal personality.
Conversely, governments have long been reluctant to subject their efforts to maintain law and
order and public security within their territorial borders to the purview of international law. The
incorporation of the concept of non-international armed conflict in common Article 3 therefore
constituted a landmark in the development and codification of IHL. From that moment on,
organized armed groups were considered “parties” to an armed conflict with their own
obligations under international law, irrespective of any formal recognition of belligerency by the
opposing State. At the same time, the contracting States emphasized that the provisions of
common Article 3 “shall not affect the legal status of the Parties to the conflict.”63 In other
words, treaty recognition of organized armed groups as belligerent parties implies neither that
they are legitimate nor that they have full legal personality under international law. This
historical background has shaped the current body of treaty IHL, which is, as a result, much
more extensive for international than for non-international armed conflicts, even though the
humanitarian and military rationales are essentially the same for both types of conflict.64
Despite the practical similarities, however, there are decisive differences between international
and non-international armed conflicts, and this makes it indispensable to maintain the
distinction between them.

The most important difference concerns the threshold of violence required for a situation to be
deemed an armed conflict. Given that jus ad bellum imposes a general prohibition on the use of
force between States, any such use can be legitimately presumed to express belligerent intent
and to create a situation of international armed conflict, which must be governed by IHL. By
contrast, within their own territory, States must be able to use force against groups or
individuals for the purpose of law enforcement; and the use of force by such groups or
individuals against each other or against governmental authorities generally remains a matter
of national criminal law. As a consequence, the threshold of violence required to trigger a non-
international armed conflict and, thereby, the applicability of IHL is significantly higher than for
an international armed conflict. Another important reason for maintaining the distinction
between international and non-international armed conflict is the position taken by many
States that equating the two types of armed conflict could be perceived as providing armed
opposition groups with international status and might therefore undermine State sovereignty
and encourage rebellion. It is important to note that, in terms of legal concept, the categories
of international and of non-international armed conflict are absolutely complementary in that
they cover all conceivable situations triggering the applicability of IHL. Legally speaking, no
other type of armed conflict exists. As will be shown, this does not preclude the two types of
armed conflict from coexisting, or a situation from evolving from one type of armed conflict
into another.

International jurisprudence has also introduced the non-conventional notion of

“internationalized” armed conflict. In the Tadic Case the Appeals Chamber stated that a non-
international armed conflict can be “internationalized” on the basis of criteria that attest to the
role of a foreign State or of its de facto control on certain armed groups.

Taking into account the complexity of current conflicts, the doctrine recognizes that a situation
of armed conflict can be constituted by the superposition of several simultaneous conflicts,
each defined by the State or non-state nature of the forces party to the conflict. This doctrine
has led to the fragmenting of the application of humanitarian law in one same context and on
the same territory in conflict. The impact of this system is nonetheless limited by the unification
of the rules applicable to international and non-international armed conflict, notably through
the drafting of customary laws of international humanitarian law by the ICRC in 2005.
Q. Can International Humanitarian Law provide an appropriate response to issues relating to
terrorism? Briefly explain and critically evaluate the impact of terrorism and to what extent
International Humanitarian Law can provide sufficient legal support to tackle the issues of
terrorism

It takes a case-by-case approach to the legal classification of situations of violence that are
referred to colloquially as part of the ‘war on terror’. Simply put, where violence reaches the
threshold of armed conflict, whether international or non-international, IHL is applicable (see
Question 5). Where it does not, other bodies of law come into play.

For instance, specific aspects of the fight against terrorism launched after the attacks against
the United States on 11 September 2001 amount to an armed conflict as defined under IHL. The
war waged by the US-led coalition in Afghanistan that started in October 2001 is an example.
The Geneva Conventions and the rules of customary international law were fully applicable to
that international armed conflict, which involved the US-led coalition, on the one side, and
Afghanistan, on the other. However, much of the violence taking place in other parts of the
world that is usually described as ‘terrorist’ is perpetrated by loosely organized groups
(networks) or individuals that, at best, share a common ideology. It is doubtful whether these
groups and networks can be characterized as party to any type of armed conflict. ‘Terrorism’ is
a phenomenon. Both practically and legally, war cannot be waged against a phenomenon, but
only against an identifiable party to an armed conflict. For these reasons, it would be more
appropriate to speak of a multifaceted ‘fight against terrorism’ rather than a ‘war on terrorism’.

What law applies to persons detained in the fight against terrorism?

1. Persons detained in connection with an international armed conflict waged as part of the
fight against terrorism – the case with Afghanistan until the establishment of the new
government in June 2002 – are protected by IHL applicable to international armed conflicts. a)
Captured combatants must be granted prisoner-of-war (POW) status and may be held until the
end of active hostilities in that international armed conflict. POWs may not be tried merely for
participating in hostilities, but they may for any war crimes they might have committed. In this
case, they may be held until they have served any sentence that is imposed. If the POW status
of a prisoner is in doubt, a competent tribunal must be established to rule on the issue. b)
Civilians detained for imperative reasons of security must be accorded the protection provided
for in the Fourth Geneva Convention. Combatants who do not fulfil the criteria for POW status
(who, for example, do not carry arms openly) or civilians who have taken a direct part in
hostilities in an international armed conflict (so-called ‘unprivileged’ or ‘unlawful’ belligerents)
are protected by the Fourth Geneva Convention provided they are enemy nationals. Unlike
POWs, such persons may be tried under the domestic law of the detaining State for taking up
arms, as well as for any criminal acts they might have committed. They may be imprisoned until
they have served any sentence that is imposed. If they are not prosecuted, they must be
released as soon as the imperative reasons of security that led to their internment cease to
exist. 2. Persons detained in connection with a non-international armed conflict waged as part
of the fight against terrorism are protected by common Article 3, Additional Protocol II when
applicable and the relevant rules of customary IHL. The rules of human rights law and domestic
law also apply to them. They are entitled to the fair trial guarantees of IHL and human rights
law if they are tried for crimes they might have committed. 3. All persons detained outside of
an armed conflict in the fight against terrorism are protected by the domestic law of the
detaining State and by human rights law. They are protected by the fair trial guarantees of
these bodies of law if they are tried for crimes they might have committed. No person captured
in the fight against terrorism can be considered to be outside the law. There is no such thing as
a ‘black hole’ in terms of legal protection.