International Humanitarian Law Notes Full

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International Humanitarian Law Notes full
International Economics (Aligarh Muslim University)
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TABLE OF CONTENTS
CHAPTER 1 .................................................................................................................. 1
UNDERSTANDING INTERNATIONAL HUMANITARIAN LAW ............................ 1
1.1 What is International Humanitarian Law? .................................................................. 1
1.2 IHL as a branch of International Law ......................................................................... 1
1.3 Difference between jus ad bellum and jus in bello............................................................ 3
1.4 Similarity of Human Rights provisions and IHL ......................................................... 4
1.5 Differences between Human Rights and IHL .............................................................. 5
1.6 Emergence of International Criminal Law and interrelationships ................................. 5
1.7 History and Origins ................................................................................................... 8
1.8 Evolution of modern IHL and its definition ................................................................ 8
1.9 Law of the Hague and the Law of Geneva .................................................................. 9
1.10 Sources of IHL .......................................................................................................10
1.10.1 Treaties .................................................................................................................11
1.10.2 Customary International Law ....................................................................................11
1.10.3 Judicial decisions .....................................................................................................13
1.11 Case Study................................................................................................................14
1.12 Required Reading ...................................................................................................14
1.13 Further Reading......................................................................................................15
CHAPTER 2: ................................................................................................................16
CLASSIFICATION OF CONFLICTS AND APPLICABILITY .....................................16
2.1 Definition of armed conflict ......................................................................................16
2.2 Why classify conflicts? ..............................................................................................17
2.3 Who and how armed conflicts are classified? .............................................................18
2.4 International Armed Conflicts (IAC) and Internationalized Non-International Armed
Conflicts (Int. NIAC) .....................................................................................................19
2.5 Internal disturbances and tensions .............................................................................22
2.6 Application of IHL in International Armed Conflicts and Internationalized Armed
Conflicts ........................................................................................................................23
2.7 Application of IHL in Non- International Armed Conflicts.........................................24
2.8 Application of IHL in Internal Disturbances and Tensions .........................................26
2.9 Challenges in application of IHL ...............................................................................27
2.10 Case Study .............................................................................................................27
2.11 Required reading ....................................................................................................29
2.12 Further reading .......................................................................................................29
CHAPTER 3: ................................................................................................................31
PROTECTION REGIME UNDER IHL ........................................................................31
3.1 Definition and concept of combatants ........................................................................31
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3.1.1 Who are the wounded, sick and shipwrecked under Geneva Convention I (GC I),
Geneva Convention II (GC II) and Additional Protocol i (AP I)? .....................................31
3.1.2 Who is a combatant? ..............................................................................................32
3.1.3 Determination of combatant status .........................................................................32
3.1.4 Combatants defined under IAC ..............................................................................33
3.2 Treaty Law...............................................................................................................35
3.3 Customary International Law ...................................................................................36
3.4 Protection of the wounded and shipwrecked ..............................................................37
3.5 Obligation to respect .................................................................................................37
3.6 Obligation to protect and treat humanely ...................................................................38
3.7 Special provisions for shipwrecked ............................................................................39
3.8 Special Protection under Geneva Convention II .........................................................40
3.9 Medical and religious personnel ................................................................................41
3.10 Definition of medical and religious personnel ...........................................................42
3.11 Special protection of medical and religious personnel ...............................................42
3.12 Case Study .............................................................................................................44
3.14 Further reading .......................................................................................................45
CHAPTER 4 .................................................................................................................46
PROTECTION OF PRISONERS OF WAR ..................................................................46
4.1 Who is a Prisoner of War? ........................................................................................46
4.2 Hors de combat............................................................................................................46
4.3 Combatant status and prisoner of war status ..............................................................48
4.4 Who is a Prisoner of War? ........................................................................................49
4.5 Protection of Prisoners of War ..................................................................................51
4.6 General protection of prisoners of war .......................................................................52
4.7 Specific provisions for treatment of Prisoners of War in captivity ................................53
4.8 Prescribed conditions in prisoner of war camps ..........................................................54
4.9 Prisoners of war and labour conditions ......................................................................55
4.10 Transmission of information and monitoring ...........................................................56
4.10.1 Transmission of information .................................................................................56
4.10.2 Monitoring ..........................................................................................................58
4.11 Repatriation of prisoners of war ...............................................................................59
4.13 Further reading .......................................................................................................60
CHAPTER 5 .................................................................................................................61
PROTECTION OF CIVILIANS ....................................................................................61
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5.1 Definition and Concept of Civilians under IHL ..........................................................61

5.2 Who are civilians? ....................................................................................................62
5.3 Civilians who are considered as combatants owing to their association with combatants
.....................................................................................................................................63
5.4 Some categories of civilians who are specifically protected..........................................64
5.5 Civilians defined under NIAC ...................................................................................64
5.6 The protection of the civilian population against the effects of hostilities .....................65
5.7 Basic rules of civilian protection ................................................................................65
5.8 Protection of civilian objects......................................................................................67
5.9 Special protection of women .....................................................................................68
5.10 Special protection of children ..................................................................................69
5.11 Refugees and displaced persons in IHL ....................................................................70
5.12 Special protection for displaced persons ...................................................................71
5.13 Special protection for refugees .................................................................................71
5.14 Special rules on occupied territory ...........................................................................72
5.15 Obligations of the civilians ......................................................................................72
5.16 Obligations of the occupying power .........................................................................73
5.17 Case study ..............................................................................................................74
5.19 Further reading .......................................................................................................75
CHAPTER 6 .................................................................................................................76
REGULATIONS IN WARFARE ..................................................................................76
6.1 What is ‘means and methods of warfare’ under IHL? .................................................76
6.2 Prohibited means of warfare ......................................................................................78
6.3 Prohibited methods of warfare...................................................................................80
6.4 Means and Methods of Warfare: Finding the right balance .........................................81
6.5 Military necessity......................................................................................................82
6.6 The principle of humanity or humanitarian consideration ...........................................82
6.7 Rules of limitation, distinction, proportionality and precautionary measures ...............82
6.7.1 Limitation .............................................................................................................82
6.7.2 Distinction ............................................................................................................83
6.7.3 Proportionality ......................................................................................................83
6.8 What is collateral damage? ........................................................................................84
6.8 What is a military advantage?....................................................................................84
6.9 Prohibition on indiscriminate attack causing superfluous injury or unnecessary suffering
.....................................................................................................................................84
6.10 Prohibition on indiscriminate means and methods ...................................................85
6.10.1 Indiscriminate weapons ........................................................................................85
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6.10.2 Indiscriminate attacks ..........................................................................................85

6.10.3 Weapons Causing Superfluous Injury or Unnecessary Suffering .............................86
6.10.3.1 What does the prohibition to cause superfluous injury or unnecessary suffering
mean? ............................................................................................................................86
6.10.3.2 Attacks Causing Superfluous Injury or Unnecessary Suffering .............................87
6.11 Case study ..............................................................................................................87
6.13 Further reading .......................................................................................................88
CHAPTER 7 .................................................................................................................89
HUMANITARIAN ASSISTANCE AND ROLE ON NON-GOVERNMENTAL
ORGANISATIONS ......................................................................................................89
7.1 Fundamental humanitarian principles .......................................................................89
7.1.1 Humanity ..............................................................................................................90
7.1.2 Neutrality ..............................................................................................................90
7.1.3 Impartiality ...........................................................................................................90
7.1.4 Independence ........................................................................................................90
7.2 Challenges faced by humanitarian assistance .............................................................91
7.3 Humanitarian assistance under IHL ..........................................................................92
7.3.1 International Armed Conflicts ................................................................................92
7.3.2 Non-International Armed Conflicts ........................................................................93
7.3.3 Situations short of armed conflicts ..........................................................................94
7.4 Relief supplies for humanitarian assistance ................................................................94
THE CONCEPT OF IMPARTIAL HUMANITARIAN ORGANIZATIONS AND THE
ICRC.............................................................................................................................95
7.5 Impartial humanitarian organizations ........................................................................95
7.6 Right of initiative ......................................................................................................96
7.7 The International Committee of The Red Cross (ICRC) .............................................96
7.8 The Emblems of The Red Cross and Red Crescent Movement ....................................98
7.9 Case study ................................................................................................................99
7.11 Further reading ..................................................................................................... 100
CHAPTER 8 ............................................................................................................... 101
REPRESSION OF SERIOUS VIOLATIONS OF IHL & GRAVE BREACHES UNDER
IHL ............................................................................................................................. 101
8.1 Definition of Grave Breaches .................................................................................. 101
8.1.2 Grave breaches specified in Additional Protocol of 1977 ........................................ 102
8.2 Grave Breaches and Non-International Armed Conflicts .......................................... 105
8.3 Repression mechanisms for violations of Grave Breaches ......................................... 105
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8.3.1 Prosecution by States ........................................................................................... 105

8.3.2 Aut dedere aut judicare principle .............................................................................. 106
8.3.3 Universal Jurisdiction .......................................................................................... 106
8.4 International Criminal Law and the Complementarity Principle ............................... 106
8.5 Individual Criminal Responsibility .......................................................................... 107
8.6 Evolution of International Criminal Law and International Criminal Court (ICC) ..... 108
8.6.1 What Is International Criminal Law?.................................................................... 108
8.6.2 International Criminal Law and IHL .................................................................... 109
8.6.3 International Criminal Law and International Human Rights Law......................... 109
8.7 Evolution of International Criminal Law ................................................................. 110
8.8 International Criminal Court at the Hague (ICC) ..................................................... 112
8.9 CRIMES UNDER THE ICC .................................................................................. 113
8.9.1 Genocide ............................................................................................................. 113
8.9.2 Crimes against Humanity ..................................................................................... 114
8.9.3 War Crimes ......................................................................................................... 114
8.9.4 Crime of aggression ............................................................................................. 115
8.10 Case Study ........................................................................................................... 116
8.11 Required Reading ................................................................................................. 117
8.12 Further Reading.................................................................................................... 117
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CHAPTER 1
UNDERSTANDING INTERNATIONAL HUMANITARIAN LAW
1.1 What is International Humanitarian Law?
The international humanitarian law (IHL) is a set of rules which seeks, for humanitarian
reasons, to limit the effects of armed conflict. It protects persons who are not or are no
longer participating in the hostilities and restricts the means and methods of warfare. In
other words, IHL is a set of rules which regulates the conduct of war and thereby protecting
persons who are not or no longer participating in hostilities. This is achieved by restricting
and regulating the means and methods of warfare available to the combatants. It is
important to note that IHL is a les specialis1 which starts applying when the conflict starts
and cease to apply when the conflict ends. The IHL is also known as the law of war or the
law of armed conflict. Thus, very purpose and objective of IHL can be represented as
following
1.2 IHL as a branch of International Law
1
The legal doctrine means a law governing a specific subject matter
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International law may be very broadly defined as the body of law that governs the legal
relations between or among members of the international community- States and
international organizations created by States. International law retains a structure which
is fundamentally different from the municipal law or national legal order of a State
concerned. The major difference is that international law is a consent-based law agreed
upon by concerned States, wherein municipal law is made by the governments of
concerned States and is made obligatory upon its citizens. Hence international law is
binding upon the States only if they agree upon them, except in cases of Customary
International Law and Jus Cogens.2
IHL is a part of the international law, which has been agreed upon between States to
reduce the sufferings during an armed conflict. Like all other streams of international law,
IHL is also contained in agreements between States – treaties or conventions –, customary
rules, which consist of State practice considered by them as legally binding, and general
principles. Hence IHL exemplifies all the weakness and at the same time the specificity of
international law. It was born as the law regulating belligerent inter-state relations, even
when the very existence of a State is at stake. IHL, distinct from humanitarian morality or
the simple dictates of public conscience, cannot exist except as a branch of international
law. It is also important for the international law to have rules concerning armed conflicts.
International law is the lex generalis (general law) and IHL the lex specialis (special law).
International law is therefore applicable as a complement to IHL. The rules of
international law governing the responsibility of States are a complement to the specific
2
Jus cogens are the principles which form the norms of international law that cannot be set aside,
e.g. laws against genocide, war crimes and ethnic cleansing.
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rules on individual criminal responsibility under IHL. Hence the relationship between IHL
and international law is symbiotic and inevitable to exclude each other.
1.3 Difference between jus ad bellum and jus in bello
The international legal framework governing armed conflicts can be classified as
following:
IHL applies to armed conflicts. However, it does not regulate whether a State may use
force against another State; this is governed by an important, but distinct, part of
international law set out in the United Nations Charter. This law on the use of force or
legality of the use of force is known as jus ad bellum. The use of force between States is
presently prohibited by Article 2(4) of the United Nations Charter. After the new regime
of prohibition, jus ad bellum has changed into jus contra bellum which means law on the
prevention of war. The exception of the prohibition is admitted in cases of individual and
collective self-defence under Article 51 of the United Nations Charter.
As mentioned above, IHL does not deal with the legality of the use of force. There are
two possible reasons for this. First, because IHL was developed at a time when the use of
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force was lawful conduct of international relations, States were not prohibited to wage
war. Second, although armed conflicts are prohibited, in reality, it happens regularly and
hence IHL exists to ensure a minimum of humanity during armed conflicts. Hence IHL,
from a humanitarian point of view, provides the victims of conflict on both sides same
protection, irrespective of the legality of use of force in a given armed conflict. IHL has,
therefore, to be respected independently of any argument of jus as bellum and has to be
completely distinguished from jus ad bellum. Thus, IHL prescribes for respect of certain
rules of behaviour in war irrespective of ius ad bellum and is known under the Latin term
jus in bello, which means law regulating the resort to force.
1.4 Similarity of Human Rights provisions and IHL
IHL seeks to protect persons who are not or no longer taking part in hostilities and to
restrict the methods and means of warfare employed by parties to an armed conflict.
Human rights also have the same objective of protecting the basic rights of human beings
at all times including armed conflicts. Hence, they share the common purpose, i.e.
protecting human dignity and guaranteeing respect for life – physical and mental well-
being.
IHL and Human Rights Law - Common Goal: Protection of the Individual
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1.5 Differences between Human Rights and IHL
Both human rights law and IHL technically apply in armed conflict but they are designed
to apply in different kinds of situations. Primarily, human rights law is designed to govern
in peacetime whereas IHL, as we have seen earlier, only applies in situations of armed
conflict. It is also interesting to note that both streams developed independently of each
other. Even though, human rights law is applicable in times of armed conflict; some of its
rules can be suspended by the State in case of emergency situations under Article 4 of the
International Covenant on Civil and Political Rights.
However, such suspension must be proportionate to the crisis; they shall not involve
discrimination; they must be consistent with other rules of international law, including
IHL. Whereas protections under IHL can never be derogated from and apply equally to
all parties to the conflict. Further, unlike IHL, human rights law does not directly bind
non-State armed groups or rebels. Human rights obligations are primarily the
responsibility of States, while IHL binds all parties to an armed conflict, including armed
groups that do not form part of the armed forces of a State, such as rebel groups, in a
situation of internal armed conflict.
1.6 Emergence of International Criminal Law and interrelationships
International criminal law provides a means for the enforcement of IHL in addition to
seeking to repress widespread violation of human rights and mass atrocity. Originally
developed as a means to repress piracy in high seas, international criminal law was started
being used for prosecuting violations of laws and customs of war at the international level
from the World War I onwards. The victorious side made a futile attempt through the
Treaty of Versailles (with Germany) and the Treaty of Sèvres (with Turkey) for war crimes
trials as the aftermath of World War I. The allied forces had established more successful
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international criminal trials for the atrocities committed during the World War II. The
famous Nuremberg and Tokyo trials, as they were known for the International Military
tribunal for Europe and International Military Tribunal for the Far East, are considered to
be the first modern trials under international criminal law. Even though widely considered
as victims- justice courts, they laid down many landmark principles which are still
followed in International criminal law.
Subsequently, in 1993, the UN Security Council, by Resolution 827, set up an
International Criminal Tribunal for the Former Yugoslavia. That tribunal was established
to deal with serious international crimes committed since 1991 on the territory of the
former Yugloslavia and is based in The Hague. In 1994, the UN Security Council, by
Resolution 955, set up an International Criminal Tribunal in Arusha, Tanzania, to try
crimes committed during the genocide in Rwanda in which nearly a million people died.
In addition to these international criminal tribunals, there are a number of
‘internationalized’, ‘mixed’ or ‘hybrid’ tribunals. These are tribunals established to
prosecute those who are alleged to have committed international crimes. The tribunals are
part international and part domestic. Examples for these tribunals are the Special Court
for Sierra Leone: established by agreement between the United Nations and the
Government of Sierra Leone to prosecute international and national crimes committed in
the war in that country, the Extraordinary Chambers in the courts of Cambodia:
established to deal with the crimes against humanity committed in Cambodia by the
Khmer Rouge in the 1970s in which about two million people are estimated to have died.
The latest development in the field of international criminal law is the constitution of a
permanent International Criminal Court at The Hague in The Netherlands. The court has
jurisdiction to try four crimes, viz., genocide (defined in article 6), crimes against humanity
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(defined in article 7), war crimes (defined in article 8), and crimes of aggression (defined
in article 8 bis*).
As IHL is a body of law meant for the protection of victims of armed conflicts, its
application depends on the classification of armed conflicts. For this reason, armed
conflicts have to be classified as international armed conflicts (IAC), non-international
armed conflicts (NIAC), and internal disturbances and tensions. International criminal
law and IHL share common roots, especially about serious violations of IHL, which form
the basis of offences of war crimes under international criminal law. Hence war crimes in
international criminal law are also classified on the basis of armed conflicts.
International criminal law and human rights also share some commonalities and common
roots. Some international criminal law crimes especially genocide and crimes against
humanity owe their origin to human rights law. The ad hoc tribunals (International
Criminal Tribunals for Yugoslavia and Rwanda) had widely used instruments and
practices developed in human rights law in its jurisprudence. Also, in the international
criminal procedure, many of the due process protections accorded to defendants originate
in human rights law. However, both are not the same, for example human rights
obligations are imposed on States while international criminal law deals primarily with
individual criminal responsibility.
The Rome Statute of the International Criminal Court has taken the grave breaches of
IHL to an advanced level by including the violations of war crimes during a NIAC and
human rights violations at all times under its jurisdiction irrespective of the existence of
armed conflict.
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1.7 History and Origins
The laws of war are as old as war itself. Every civilization across the world has customs
and agreements holding values of humanitarian principles. Almost all of them carry
similar patterns and objects. For example, the Six Secret Teachings of the 11th century
BC, China, Jiang Ziya (Taigong), prohibits setting fire to what the people have
accumulated; destroying their houses, or cutting down the trees at gravesites or altars
during wars. Likewise, Koina Nomina, the ‘common customs’ of warfare, of the 6th
century BC Greece prohibits the use of use of non-traditional Greek infantry arms (e.g.
projectile missiles). Even the indigenous societies like the Maori Warriors of New Zealand
and indigenous tribes of Senegal had their codes and oral traditions which were akin to
modern humanitarian law.
The contribution of religion to the development of ancient laws of war is undeniable. For
example, Khalif Abu Bakr Al-Siddiq, the first caliph after the prophet Muhammed during
the 6-7th century, in his teachings prohibited betrayal, extravagance, perfidy or mutilation;
killing small children, old men or women; cutting or set fire to palm trees, fruit-bearing
trees etc. The Manusmriti of Hindus preaches against striking with weapons concealed (in
wood), or with (such as are) barbed, poisoned, or the points of which are blazing with fire.
The humanitarian significance of these ancient rules and customs was applicable only to
specific regions and very often limited to a specific war. Moreover, its implementation was
often difficult as it fully depended upon the willingness of the belligerents.
1.8 Evolution of modern IHL and its definition
The development of modern laws of war, however, is associated with two incidents, the
adoption of the First Geneva Convention and the Liber Code both in 1864 in two different
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continents – Europe and America - independently. It is to be noted that both these are not
completely new but derived from customs and practices prevailing in different countries.
First Geneva Convention was developed at the instance of a businessman Henry Dunant,
who witnessed the carnage in the battle of Solferino, Italy in 1859. He published the book,
Un Souvenir de Solferino (A Memory of Solferino) in 1862 on the human sufferings he had
witnessed in the battle. Subsequently, Henry Dunant and four others created a committee
for helping victims of armed conflicts, which later became the Red Cross movement.
Along with that on 22 August 1864, at their instance, a conference adopted the first
Geneva Convention "for the Amelioration of the Condition of the Wounded in Armies in
the Field". Representatives of twelve States and kingdoms signed the Convention.
Simultaneously, the United States of America at the height of the American Civil War
promulgated a code of conduct for the soldiers fighting on the Union side of the Civil War.
It was named after its main author, Francis Lieber, a Columbia Law School professor.
The purpose was to set detailed rules that could guide the Union’s war effort. Professor
Lieber was a native of Prussia, who had fought in the Napoleonic Wars and later
immigrated to the United States.
The Lieber Code consisted of just 157 provisions, subdivided into ten sections. It codified
the then existing rules and custom of war, and it addressed a wide range of topics.
However, it speaks of several core principles of modern IHL including the principles of
humanity and military necessity, the distinction between civilians and combatants, and
certain inviolable rules such as the prohibitions of perfidy or torture.
1.9 Law of the Hague and the Law of Geneva
IHL proper is classified into categories, Law of The Hague and the Law of Geneva. This
classification is based on the place where the laws were initially developed. The Law of
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The Hague derives its name from The Hague Conventions of 1899 and 1907 that regulate
means and methods of warfare. The Law of Geneva derives its name from the Geneva
Conventions, notably those of 1864, 1929 and 1949, that protect those who do not or no
longer take part in hostilities. The distinction lost most of its relevance with the adoption
in 1977 of the two Additional Protocols to the 1949 Geneva Conventions (AP I and AP
II). Those two new instruments mix rules pertaining to both aspects of IHL.
1.10 Sources of IHL
Like the other streams of international law, IHL also finds its sources in treaties,
customary international law, the general principles of law recognized by civilized nations.
The judicial decisions, and the teachings of the most highly qualified publicists of the
various nations, forms subsidiary means for the determination of rules of law under Article
38 of International Court of Justice Statute.
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1.10.1 Treaties
Historically, IHL has its sources in bilateral treaties, especially in cases of treatment and
exchange of prisoners of war. The systematic codification and progressive development of
IHL at international law started much earlier than many other international law branches.
The development and codifications mostly happened after major wars, taking into account
of shortcomings and new development in military technologies and practices. Probably
this is why IHL is dubbed as “one war behind”.
Nevertheless, because of this systematic codification and progressive approach to learn
from its failures, has made IHL one of the most codified branches of international law.
Moreover, IHL treaties are also considered to be the most acceded treaties among other
branches of international law. For example, the Geneva Conventions of 1949 (but not the
Additional Protocols to them) are almost universal with the consensus of around 195
countries. Because of the universal acceptance of Geneva Conventions, it acquired the
status of customary international law. It is to be understood that, treaties normally bind
those states that have specifically consented to them and become parties to them.
The most important treaties regulating the actions of participants in armed conflicts are:
• The Hague Conventions of 1899 & 1907 and in particular the Regulations
attached to Hague Convention IV 1907 on Laws and Customs of War on Land;
• The four Geneva Conventions of 1949; and
• Additional Protocols I, II (1977) and III (2005) to the 1949 Geneva Conventions.
1.10.2 Customary International Law
The customary international law refers to unwritten rules of law derived from the practice
or conduct of states. This is a body of rules dealing with armed conflict which is derived
from state practice is otherwise known as the customs of war has its origin in the customary
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practices of the armies as they developed over the ages and on all continents. As the treaties
did not codify all aspects of custom, the importance of customary international law is
reaffirmed in the “Martens Clause” and later in the Additional Protocol I to the Geneva
Conventions. Martens Clause read 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 Statute of the International Court of Justice describes customary international law as
“a general practice accepted as law”. The importance of customary International law is
that non-contracting States will also be bound by the norms in the treaty, not because they
form part of a treaty but because it is customary international law applicable universally.
The existence of a rule of customary international law requires the presence of two
essential elements, viz. state practice (usus) and such practice are followed as a matter of
law (opinion juris sive necessitatis).
State practice may consist of physical and verbal acts of the State. Abstention from certain
conduct is also noted when relevant. However, the practice should consist of official
practice. The practice of the executive, legislative and judicial branches of the government
may contribute to the formation of the customary international law. Acts need to be
communicated at least to one other state or relevant international organization.
International organizations have international legal personality and can participate in
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international relations in their capacity, independently of their member States, hence their
practices can contribute towards the formation of the customary international law.
Further to establish a rule of customary international law, the state practices have to be
virtually uniform, extensive and representative. However, no specific period is required to
satisfy this criterion. Opinion juris sive necessitatis is the second requirement for proving the
existence of a rule of customary international law. This relates to the need for the practice
to be carried out as a legal requirement. In the words of International Court of Justice
(ICJ), opinion juris means “a belief that this practice is rendered obligatory by the existence
of a rule of law requiring it”. Here it means that the requirement is a legal requirement,
rather than one reflecting courtesy or mere comity.
The International Committee of the Red Cross (ICRC) conducted an extensive study of
customary IHL, and published it in 2005-06 providing an extensive analysis of state
practice in the area. Many of the rules contained in the IHL treaties have also become
rules of customary international law. As such they apply to all States including those not
parties to the relevant treaty.
1.10.3 Judicial decisions
The rules regulating armed conflict are also to be found in judicial decisions considering
these issues. For example, prosecutions for war crimes before either national or
international tribunals will usually raise and decide issues concerning the laws of war.
Thus, the war crimes trials held after World War II and the case law of the International
Criminal Court as well as the ad hoc International Criminal Tribunals for the former
Yugoslavia (ICTY) and for Rwanda (ICTR) address issues regarding the laws of war. The
decisions by International Court of Justice on IHL related matters are also of great
importance as a source for IHL.
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Examples of national judicial decisions and International Court’s decisions on IHL:
• Military and Paramilitary Activities in and against Nicaragua by ICJ.
• Tadic decision by ICTY appeals chamber.
• In 2006, the US Supreme Court decided on the legality, under IHL, of the
Military Commissions established to prosecute persons detained in Guantanamo
Bay.
1.11 Case Study
On December 2017, Unaporri a Country in Mediterranean region attacked and captured
Sync Valley belonging to its neighboring peaceful country Zymigy. Unaporri claimed
that historically Sync Valley belongs to them. There was no bloodshed or killings during
the capture as Zymigy’s armed forces didn’t resist the aggression. Subsequently, a
dispute arouses at international level on the legality of Unaporri’s action of capturing
Sync Valley from Zymigy.
Question:
Does this subsequent dispute on legality of Unaporri action is matter which can be mitigated
under IHL? Explain your answer with reasons
Answer:
The legality of a conflict is a matter of jus ad bellum and is not mitigated under IHL.
1.12 Required Reading
1. BUGNION François, “Just War, War of Aggression and International

Humanitarian Law”, in IRRC, No. 847, September 2002, pp. 523-546.
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2. Doswald-Beck Louise & Vite Sylvain, "International Humanitarian Law and

Human Rights Law", in IRRC, No. 293, March-April 1993, pp. 94-119.
https://www.icrc.org/en/doc/resources/documents/article/other/57jmrt.htm
3. RAJAN Sanoj,” Principles of Laws of War in Ancient India and the concept of
Controlled Conflicts”, 5(1-2) Journal of International Humanitarian Legal
Studies 333 – 351(2014 Brill Publications, The Netherlands).
https://brill.com/view/journals/ihls/5/1-2/article-p333_12.xml
1.13 Further Reading
1. Brownlie Ian, International Law and the Use of Force by States (Oxford, Clarendon
Press, 1963), pp. 532.
2. Dinstein Yoram, War, Aggression and Self-defence, (Cambridge, CUP, 2001), pp.
300.
3. Lauterpacht Hersch, "The Problems of the Revision of the Law of War", 29 BYIL
360-382.
4. Dunant Henry, A Memory of Solferino, ICRC Publication available at
https://www.icrc.org/eng/assets/files/publications/icrc-002-0361.pdf
5. Adachi Sumio, "The Asian Concept", in International Dimensions of Humanitarian
Law, Geneva, Henry-Dunant Institute/UNESCO, 1988, pp. 13-19.
6. How does Law Protect in War, Vol. 1, Outline of International Humanitarian Law
Possible Teaching Outlines, ICRC.
7. D.T Gutierrez Posse, The Relationship Between International Humanitarian Law
and the International Criminal Tribunals
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CHAPTER 2:
CLASSIFICATION OF CONFLICTS AND APPLICABILITY
2.1 Definition of armed conflict
The Geneva Conventions (GC) and Additional Protocols (AP) I and II do not define
armed conflicts. However, the Common Article 2 and Common Article 3 to the Geneva
Conventions of 1949 mention international armed conflicts and non-international armed
conflicts respectively. The former provides that the Convention shall apply to all cases of
declared war or of any other armed conflict which may arise between two or more of the
High Contracting Parties,3 even if the state of war is not recognized by one of them. The
Convention also includes all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance as an armed
conflict. Common Article 3 mentions that it applies to "armed conflicts not of an
international character occurring in the territory of one of the High Contracting Parties".
Even though these articles do mention the word armed conflicts and High Contracting
Parties, they fail to define ‘armed conflict’ effectively. Same is the case with Additional
Protocols.
The widely accepted definition of armed conflict was given in Prosecutor v. Tadic by
International Criminal Tribunal for Yugoslavia (ICTY) Appeals Chamber. It provides that
an armed conflict exists whenever there is a resort to armed force between states or
protracted armed violence between governmental authorities and organized armed groups
or between such groups within a state.
3
State parties to the Geneva Conventions and Additional Protocol I and II
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2.2 Why classify conflicts?
It is often mentioned that war is a war, and the outcomes of war are of the same no matter
what type it is. Likewise, problems faced by the victims are of the same nature and need
similar protection. Further, from a humanitarian point of view, the same rules should
protect victims of all types irrespective of the armed conflicts. However, the humanitarian
actors and victims require to qualify the conflicts before invoking protective rules under
international humanitarian law (IHL).
The classification of conflicts is a reality in IHL application and is important because the
application of IHL provisions varies in different conflict situations. For example, during
an international armed conflict, Geneva Conventions I-IV and Additional Protocol I apply
to all parties to the conflict. Customary rules applicable in international armed conflicts
are also applicable. However, during a non-international, or internal, armed conflict, only
the fundamental guarantees of Article 3 common to the Four Geneva Conventions of 1949
and customary IHL are applicable. The provisions of Additional Protocol II also apply in
such situations if the party concerned is a party to the Convention.
Further, in cases of international conflicts, international intervention is permissible per se
under collective action. But in non-international conflicts, the sovereignty of the state will
come into play and interference need further serious justification. Hence classification of
conflicts to international armed conflicts will give better chances of protection for victims
and humanitarian intervention.
As non-international armed conflicts usually happen within the boundaries of the states,
they would prefer to stick on to the inherent right to use force within its boundaries and
exclude the intervention of the international law. This justifies the less protection under
IHL in non-international armed conflict situations. Moreover, IHL rules of non-
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international armed conflict are new compared to IHL provisions relating to the
international armed conflict.
The classification of armed conflicts into an international armed conflict gives advantages
like the distinction between combatants and non-combatants, the status of prisoners of war
(Article 4, GC III), protection for civilians and those who do not take part in the conflict.
Further, it also enables the states to prosecute perpetrators for war crimes committed.
These advantages are not available in situations of non-international armed conflict
2.3 Who and how armed conflicts are classified?
Until the World War II, there was only one armed conflict as international law as a whole
was concerned only with the relationship between States. It was possible for the laws of
war to apply to non-international armed conflicts only in cases where there was
recognition, either by the State involved in such conflicts or by a third State, of the
belligerency of the insurgent party. Learning from the practice of some States and of the
League of Nations initiatives during the Spanish Civil War (1936–1939), the Geneve
Conventions of 1949 established the bifurcation of IHL into the law of international armed
conflicts and that of non-international armed conflicts.
It is widely accepted that drawing a line of demarcation between international armed
conflict and non-international armed conflict is not an easy task and unfortunately, there
is no internationally authorized institution to classify armed conflicts. The classification
of international armed conflicts is more clear and easy as Article 2 common to the Geneva
Conventions of 1949 provides that the Conventions “shall apply to all cases of declared
war or of any other armed conflict which may arise between two or more High Contracting
Parties, even if the state of war is not recognized by one of them”. Hence when there is an
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armed conflict between two states, it may be classified as an international armed conflict
even if one of the states deny its existence.
However, classifying an armed conflict as a non-international one and distinguishing it
from an internal tension is not an easy task and often is not accepted by the states
concerned. Organs of United Nations and organizations like the International Committee
of the Red Cross do classify armed conflicts for their internal purposes. However, this need
not necessarily have to get acceptance from the states.
2.4 International Armed Conflicts (IAC) and Internationalized Non-International

Armed Conflicts (Int. NIAC)
According to Common Article 2 to the Geneva Conventions of 1949, an IAC occurs when
there is a declared war or any other armed conflict between two states even when the state
of war is not recognized by any one of them. This is regardless of the reasons or the
intensity of the confrontation. Relevant rules of IHL may apply even in the absence of
open hostilities. Moreover, no formal declaration of war or recognition of the situation is
required. Also, the existence of international armed conflict is assumed in situations of
partial or total occupation of the territory of a state party, even if the occupation meets no
armed resistance.
As per Additional Protocol, I Article 1 para 4 IAC also includes situations in which people
are fighting against colonial domination and alien occupation and racist regimes in the
exercise of their right of self-determination. This article was included when most of the
colonies were fighting for independence from European colonizers. Hence contemporary
insurgent movements in different states may not fall into this category unless it is against
colonial domination, alien occupation and racist regimes in the exercise of their right of
self-determination.
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In the Tadic Case, ICTY defined international armed conflict thus: "an armed conflict exists
whenever there is a resort to armed force between States". The definition has been widely
adopted by other international bodies since then. A NIAC may become an IAC
(internationalized non-international armed conflict) by the intervention of armed forces
belonging to, or under the overall control of one or more third states. However, if the
intervention is with the consent of state authorities and is against the rebellion, then it will
remain a NIAC. If the State authorities did not consent, and the support by the intervening
third state is given to the rebels, then it becomes IAC. If the armed forces of the third state
remain distinct from the rebels and do not fight along with them, then co-existence of both
IAC and NIAC occurs. If armed forces of the third state mix with rebels and fight, then it
becomes an IAC.
ICTY in Tadic Case set a test of overall control to determine the level of intervention by the
third state. According to the ICTY, “[C]ontrol by a State over subordinate armed forces
or militias or paramilitary units may be of an overall character but must comprise more
than the mere provision of financial assistance or military equipment or training”. Under
international law, it is by no means necessary that the controlling authorities should plan
all the operations of the units dependent on them, choose their targets, or give specific
instructions concerning the conduct of military operations and any alleged violations of
international humanitarian law. The control required by international law may be deemed
to exist when a State has a role in organizing, coordinating or planning the military actions
of the military group, in addition to financing, training and equipping or providing
operational support to that group. Acts performed by the group or members thereof may
be regarded as acts of de facto State organs regardless of any specific instruction by the
controlling State concerning the commission of each of those acts.
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2.5 Non-International Armed Conflicts (NIAC)
Two main legal sources have to be examined to determine existence of NIAC under the
international humanitarian law. They are:
(a) Common Article 3 to the Geneva Conventions of 1949;
(b) Article 1 of Additional Protocol II.
Common Article 3 applies to "armed conflicts not of an international character occurring
in the territory of one of the High Contracting Parties". Unfortunately, Article 3 Common
to all four 1949 Geneva Conventions does not specify precisely when it will apply,
referring only to an ‘armed conflict, not of an international character occurring in the
territory of one of the High Contracting Parties’. Whether or not such a conflict is taking
place is determined by criteria which have been fleshed out by customary international
law.
A NIAC situation requires the following essential elements to qualify under IHL:
• Armed confrontation is taking place within the territory of the state
• Armed violence between government v. armed insurgent groups and/or between
themselves
• It is clear that in all NIAC, at least one party must be considered a non-state
group
• Reasons for the conflict must be for taking over the reigns of power, or to obtain
greater autonomy within the state, or to secede and create a separate state
• Caused or ignited by various reasons, like oppression and other human rights
violations, crumbling of the governmental system or revolting against dictatorial
rule
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In the Tadić Case, the Appeals Chamber of the ICTY referred to NIAC as a situation of
‘protracted armed violence between governmental authorities and organized armed
groups or between suchgroups within a State’. In the words of the Appeals Chamber in
Tadić, it must be an ‘organized armed group’. The factors relevant to determining whether
an armed group is ‘organized’ are as follows:
• The existence of a command structure and disciplinary rules and mechanisms
within the group;
• The existence of headquarters;
• The fact that the group controls a certain territory;
• The ability of the group to gain access to weapons, other military equipment,
recruits and military training;
• Ability to plan, coordinate and carry out military operations, including troop
movements and logistics;
• Ability to define a unified military strategy and use military tactics; and
• Ability to speak with one voice and negotiate and conclude agreements such as
ceasefire or peace accords.
The same test is adopted in Article 8(2)(f) of the Statute of the International Criminal Court
(ICC). As the ICC Statute indicates, a NIAC excludes ‘situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar
nature.
2.5 Internal disturbances and tensions
Internal disturbances are situations of confrontation within a country. These
confrontations are of certain seriousness and durations, and involve acts of violence which
do not have the intensity of a NIAC. (AP II Art.1)
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Internal disturbances and tensions include situations of serious tensions like political
religious, racial, social and economic etc. it may also have sequels of conflict or
disturbances. (AP II Art.1)
Classification of conflicts
2.6 Application of IHL in International Armed Conflicts and Internationalized

Armed Conflicts
GC I to IV has around 425 Articles which apply in situations of IAC and Internationalized
NIAC. Additional Protocol I exclusively deal with situations of IAC and Internationalized
NIAC and contains around 100 plus Articles.
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They apply to the following groups:
• Wounded or sick military personnel in the land and naval warfare
• Members of armed forces’ medical services
• Prisoners of war
• Medical and religious personnel or civil defence units
• Civilian population including
o foreign civilian on conflict area including refugees
o civilians in occupied territories
o civilian detainees and internees
2.7 Application of IHL in Non- International Armed Conflicts
Following provisions apply to situations of NIAC
• Common Article 3 of the Geneva conventions of 1949
• Additional Protocol II of 1977
• Customary Law
And it protects
• every individual or category who are not or no longer taking part in armed conflict
(Common Article 3 of GC)
• wounded or sick fighters
• people deprived of their freedom as a result of the conflict
• the civilian population
Common Article 3 provides that persons not actively taking part in hostilities including
civilians and Hors de combat shall be treated humanely and without any adverse
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distinction of race, creed, religion, faith, colour, sex, birth or wealth. Following acts are
prohibited in all circumstances
• violence to life and person
• murder of all kinds
• mutilations
• cruel treatment and torture
• outrages on personal dignity, in particular, humiliating and degrading treatments
Additional Protocol II develops and supplements the Common Article 3 and shall apply
to all conflicts which are not covered by AP I. To qualify for the application of Additional
Protocol II, the non-state parties to the conflict shall have the following:
• A responsible command
• Exercises control over parts of its territory which enables them to carry out
sustained and concerted military operations and to implement this protocol
• It shall not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar nature, as not being
armed conflict
• It shall be applied without any distinction what so ever
The definition in AP is narrower than the notion of NIAC under common Article 3 in two
aspects. First, it introduces a requirement of territorial control, by providing that non-
governmental parties must exercise such territorial control "as to enable them to carry out
sustained and concerted military operations and to implement this Protocol". Secondly,
AP II expressly applies only to armed conflicts between State armed forces and dissident
armed forces or other organized armed groups. Contrary to common Article 3, the
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Protocol does not apply to armed conflicts occurring only between non- State armed
groups.
Judgments of the ICTY also throw some light on the definition of NIAC. As mentioned
above, the ICTY went on to determine the existence of a NIAC "whenever there is […]
protracted armed violence between governmental authorities and organized armed groups
or between such groups within a State". The ICTY thus confirmed that the definition of
NIAC in the sense of common Article 3 encompasses situations where "several factions
[confront] each other without involvement of the government's armed forces".
Applicability of Law
2.8 Application of IHL in Internal Disturbances and Tensions
IHL does not apply during internal disturbances and tensions as there is no armed conflict
in existence. The legal regime which governs such situations is the domestic laws of the
country concerned. It is also important to note that in times of peace, core human rights
and fundamental guarantees similar to those set out in common article 3 are applicable as
elementary considerations of humanity. (see Nicaragua Case, ICJ 1986, quoting Corfu Channel
Case, ICJ 1949)
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2.9 Challenges in application of IHL
The complex nature of present conflicts brings challenges in the classification of conflicts
and application of IHL. The majority of modern conflicts are of mixed nature which
creates problems in putting them as IAC or NIAC. Further, the interplay between IHL
and human rights law continues to have practical consequences on the conduct of military
operations. The relationship between human rights law and IHL impacts issues related to
detention, the use of force as well as the extraterritorial targeting of persons in both
international and non-international armed conflicts. Emerging technologies including
cyberspace warfare also create a great challenge to the application of IHL. The tendency
of States to label acts of non-state armed groups amounting to NIAC as ‘terrorist’ acts has
emerged as one of the greatest challenges to the application of IHL.
2.10 Case Study
Events:
On 08 November 2017, a group of people attacked the Parliament house of Atlantis. The
attempt was neutralized by the special security police of Atlantis. However, 24 people
including civilians and members of special security police were killed and another ten were
injured. The attack was claimed by a new group called Atlantis Freedom fighters, (AFF),
who has the political agenda of over throwing the government led by the president Thomas
AKINI. On 22 November the police after a thorough investigation arrested twelve people
belonging to AFF including its self-proclaimed leader John JONES. After the arrest of
John JONES on 24th November Atlantis witnessed the largest demonstration before the
Parliament . There was widespread violence during the demonstration, and the police had
used force to disperse the mob. A total of ten people were killed in the commotion and
stampede following the police action. Hundreds of people were also arrested by the police
during the demonstration.
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On 25th November President AKINI promised the nation to suppress the AFF and
declared national emergency. The government also authorized the police to shoot
demonstrators at sight under the anti-riot law. After the declaration of emergency, the
members of AFF under the leadership of Timothy JONES, younger brother of John
JONES escaped to the neighbouring country, Neptunia. The government of Neptunia
gave refuge and promised all support to their fight against President AKINI. The AFF
members were given weapons training and free arms and ammunition by the government
of Neptunia.
3 December 2017 witnessed an attack by AFF in the City of Pluto in Atlantis which
borders Neptunia. The attack took Atlantis by surprise and destroyed and created a major
dent in the military capacity of Atlantis. The city was effectively captured and occupied
by AFF. The AFF established an ad hoc government in the City of Pluto and started
governing the city.
However, one month later on January 5, 2018, Atlantis with a refurbished army attacked
the City of Pluto. AFF could not stand the military might of Atlantis and requested
Neptunia to help them fighting the Atlantis onslaught. The Neptunian army joined AFF
on 6th January and fought against Atlantis. However, the combined forces could not resist
the Atlantis attack, and Atlantis recaptured Pluto on 10 January 2018 and arrested
Timothy JONES and other leaders of AFF. Neptune forces withdrew from the City of
Pluto.
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Question:
For the various periods of the crisis, indicate if IHL is applicable. If so, specify which set
of rules is applicable: those applicable in international armed conflict or those applicable
in non-international armed conflict? Justify all your answer.
Answer: No armed conflicts till 3 December and NIAC started on that date. On 6th
January the armed conflict becomes internationalized NIAC by the involvement of
Neptunian army. IHL applies accordingly.
2.11 Required reading
1. Akande, Dapo, “Classification of Armed Conflicts: Relevant Legal Concepts”
(August 20, 2012). In E Wilmshurst (ed), International Law and the Classification
of Conflicts (OUP 2012), Chapter 3.
2. ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 70.
3. D. Schindler, The Different Types of Armed Conflicts According to the Geneva
Conventions and Protocols, RCADI, Vol. 163, 1979-II.
4. How is the Term "Armed Conflict" Defined in International Humanitarian
Law?” International Committee of the Red Cross (ICRC) Opinion Paper, March
2008 https://www.icrc.org/en/doc/resources/documents/article/other/armed-
conflict-article-170308.htm
2.12 Further reading
1. Y. Sandoz/C.Swinarski/B. Zimmermann, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC,
Geneva, 1987, para. 4461.
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2. J. Pictet, Commentary on the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva,
1952.
3. H.P. Gasser, “International Humanitarian Law: An Introduction” in H. Haug,
Humanity for All: The International Red Cross and Red Crescent Movement, Paul
Haupt Publishers, Berne, 1993.
4. Case Concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. The United States of America); Merits, International Court of
Justice (ICJ), 27 June 1986.
5. ICRC, Contemporary Challenges to IHL available at
https://www.icrc.org/eng/war-andlaw/contemporary-challenges-for-
ihl/overview-contemporary-challenges-for-ihl.htm
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CHAPTER 3:
PROTECTION REGIME UNDER IHL
3.1 Definition and concept of combatants
3.1.1 Who are the wounded, sick and shipwrecked under Geneva Convention I (GC
I), Geneva Convention II (GC II) and Additional Protocol i (AP I)?
Geneva Convention distinguishes the wounded, sick and shipwrecked on the basis of
whether they are combatants or civilians. GCI, GC II, GC III, GC IV and AP I define
wounded and sick; GC II and AP I have provisions emphasizing on the shipwrecked. The
GCIII talks about the Prisoners of War and GC IV talks about civilians as wounded, sick
and shipwrecked. This module, however, will focus only on the wounded, sick and
shipwrecked under GCI, GCII and API as other categories are dealt with in Modules 4
and 5.
It is important to note that none of the Geneva Conventions defines who are wounded,
sick or shipwrecked. However, GCI, GCII and GCIII define combatants who are entitled
to take part in armed conflicts and GC IV defines civilians who are protected. Hence one
has to construe from this that wounded, sick and shipwrecked are either combatants or
civilians who are wounded, sick or shipwrecked during an armed conflict of international
nature. It is important to note that the protection to wounded, sick and shipwrecked is
available to a person only if he is not or no longer taking part in hostilities. Further, the
API clearly defines who is wounded and sick under Article 8 (a) and it reads thus:
“wounded” and “sick” mean persons, whether military or civilian, who, because of
trauma, disease or other physical or mental disorder or disability are in need of
medical assistance or care and who refrain from any act of hostility. These terms also
cover maternity cases, new-born babies and other persons who may be in need of
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immediate medical assistance or care, such as the infirm or expectant mothers, and
who refrain from any act of hostility”
Article 8(b) defines shipwrecked as:
“shipwrecked” means persons, whether military or civilian, who are in peril at sea or
in other waters as a result of misfortune affecting them or the vessel or aircraft carrying
them and who refrain from any act of hostility. These persons, provided that they
continue to refrain from any act of hostility, shall continue to be considered
shipwrecked during their rescue until they acquire another status under the
Conventions or this Protocol”
3.1.2 Who is a combatant?
“Combatants” are those persons with a right to directly participate in hostilities between
States. The distinction between combatants and non-combatants forms the basic premise
on which protection of civilians under IHL rests. The purpose of the distinction is to ensure
that international armed conflicts (IAC) are waged between combatants of belligerent
nations, and spare civilians. The combatants are entitled to engage in war and entitled to
attack enemy combatants and military objectives, but may not be punished for such
participation under municipal law. However, the entitlement to kill and destruct is limited
only to enemy combatants, and civilians are fully protected from attack.
3.1.3 Determination of combatant status
The protection of wounded, sick and shipwrecked is very much attached to the status of
“combatants”. Hence determination of combatant status is of paramount importance
when it comes to the protection of those categories. It is to be noted that, the status of
“Combatants” is only recognized in IAC situations. Hence, as discussed in Module 2, it
is important to draw a distinction between the two types of conflicts in identifying the
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combatants as well. During non-international armed conflicts (NIAC), the status of
combatant does not exist and any person who has taken part in the hostilities can be tried
for the penal offences related to the armed conflict they have committed, regardless the
offences constituted war crimes. Their situation is more or less the same as for unlawful
combatants in International Armed Conflict who can also be prosecuted for taking part in
hostilities.
3.1.4 Combatants defined under IAC
IHL applicable in situations of IAC defines the “combatant” as any member of the armed
forces of a Party, except the medical and religious personnel.4 Various provisions include
the following categories under the categorization:
The members of “armed forces” consist of all organized armed forces, groups and units
which are under a command responsible to that Party for the conduct of its subordinates
even if that Party is represented by a government or an authority not recognized by an
adverse Party.5
GC III includes the following as armed forces:6
• Members of the armed forces of a Party, as well as members of militias or volunteer
corps forming part of such armed forces;
• Organized resistance movements under the conditions that they, (a) are
commanded by a person responsible for its subordinates, (b) have a fixed distinctive
sign recognizable at a distance, (c) carry arms openly, and (d) comply with IHL;
4
Art. 43.2, AP I; Art. 33, GC III
5
Art. 43.1, AP I. Also see ICRC Customary Rule 4
6
Art. 4(A), GC III
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• Persons who accompany the armed forces without actually being members thereof,
such as authorized civilian members of military aircraft crews, authorized war
correspondents, authorized supply contractors, authorized members of labour units
or of services responsible for the welfare of armed forces; and
• Levee en masse; Inhabitants of a non-occupied territory, who on the approach of the
enemy spontaneously take up arms to resist the invading forces without having had
time to form themselves into regular armed units, provided that they carry arms
openly and comply with IHL
Combatants are obliged to distinguish themselves from the civilian population, at least
while they are engaged in an attack or in a military operation preparatory to an attack.7
Members of regular armed forces usually distinguish themselves with their uniform and
members of other armed forces must carry fixed distinctive signs recognizable at a distance
and carry their arms openly. Otherwise they shall forfeit their right to prisoner of war
status.8
In situations of guerrilla warfare, where, owing to the nature of hostilities, a combatant
cannot distinguish themselves from the civilian population and they shall retain their
status of combatant only if they carries on their arms openly during each military
engagement, and during such time as they are visible to the adversary while they are
engaged in a military deployment preceding the launching of an attack in which they are
to participate.9
7
Art. 44.2, AP I
8
Art. 44.4, AP I, ICRC Customary Rule 106
9
Art. 44.3, AP I
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3.2 Treaty Law
The concept of protection of the wounded, sick, and shipwrecked during armed conflict
has been recognized in some form or other in all cultures from ancient times. As
mentioned in the First Module, the modern initiatives were from many individuals
including Francis Liber and Henry Dunant. The 1864 Geneva Convention, materialized
at the instance of Henry Dunant, and had addressed key issues relevant for the protection
of wounded and sick military personnel. It dealt with the neutrality and inviolability of
ambulances, and military hospitals and their personnel; ensured the protection and
freedom of the individuals (‘inhabitants of the country’) assisting the wounded and the
houses used to provide shelter and care; provided for the treatment, repatriation, and
evacuation of wounded or sick combatants of whatever country and finally, called for the
adoption of a ‘distinctive and uniform flag’, bearing a red cross on white ground to
facilitate the identification of ‘hospitals, ambulances, and evacuation parties’.
1864 Geneva Convention, was followed by the Additional Articles relating to the
Condition of the Wounded in War (138 CTS 189), which was adopted on 20 October
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1868, and was meant to extend the rules of the 1864 Geneva Convention to naval forces,
and thus also to the shipwrecked, but did not enter into force.
The 1899 Convention for the Adaptation to Maritime Warfare of the Principles of the
Geneva Convention, later revised by the 1907 Convention for the Adaptation of the
Principles of the Geneva Convention to Maritime Warfare (‘1907 Hague Convention X’)
extended the protection to the naval warfare and shipwrecked.
There were developments like 1906 Convention for the Amelioration of the Condition of
the Wounded in Armies in the Field, which was replaced by the 1929 Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field
before all of them were superseded by the 1949 Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva
Convention I; ‘GC I’), while the 1907 Hague Convention X was replaced by the 1949
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and
Shipwrecked Members of Armed Forces at Sea (Geneva Convention II; ‘GC II’), which
aimed at a comprehensive protection of the wounded, sick, and shipwrecked members of
armed forces at sea. Presently the GCI and GC II primarily govern the protection of
wounded, sick and shipwrecked under IHL regime.
3.3 Customary International Law
The customary international law also remained significantly decisive in the development
of the protection of the wounded, sick, and shipwrecked. Considering the fact that AP I
and AP II have not yet achieved universal ratification in contrast to the Geneva
Conventions shows the importance of customary international law in this field. Many
rules of customary international law apply equally in both international and non-
international armed conflicts, and some rules of customary international humanitarian
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law go beyond existing treaty law. The initiatives like, the International Committee of the
Red Cross’ (ICRC) work on codification of the customary international law concerning
the search, collection, evacuation, protection, treatment and care of the wounded, sick,
and shipwrecked; the San Remo Manual on International Law Applicable to Armed
Conflicts at Sea (San Remo Manual of 1994) and the San Remo Manual on the Law of
Non-International Armed Conflict (San Remo Manual of 2006) both under the auspices
of the Institute for International Humanitarian Law evidence the development of
customary international law in this regard. Further, section 9 of the 1999 UN Secretary-
General's Bulletin on Observance by United Nations Forces of International
Humanitarian Law’ specifically affirms the relevant rules for UN forces aimed at the
‘protection of the wounded, sick, and medical and relief personnel’.
3.4 Protection of the wounded and shipwrecked
The protective regime for the wounded, sick, and shipwrecked accords with the obligation
to respect and protect them under all circumstances, without adverse distinction. The
obligation to respect and protect entails not only the obligation of the parties to abstain
from acts that would endanger or injure a wounded, sick, or shipwrecked person, but also
to actively ensure the protection of the wounded, sick, and shipwrecked.
3.5 Obligation to respect
The wounded, sick and shipwrecked must, first, be respected i.e. may neither be attacked
when not in the power of a party, nor killed or ill-treated by a party in whose power they
are.10 IHL provides that the wounded, sick, and shipwrecked ‘shall be treated humanely
and shall receive to the fullest extent practicable and with the least possible delay, the
medical care and attention required by their condition [without distinction] founded on
10
Art.12, GCs I and II.
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any grounds other than medical ones.’11 Any attempt upon their lives, or violence to their
persons, are prohibited.12 Any reprisal against wounded, sick, and shipwrecked persons
are likewise prohibited.13 Moreover, the parties to an armed conflict are under the
obligation to take all possible measures to collect and evacuate the wounded, sick, and
shipwrecked without delay and without adverse distinction and to ensure the required
medical assistance.14
3.6 Obligation to protect and treat humanely
The wounded, sick, and shipwrecked shall be protected against pillage i.e. looting and
plunder, as well as ‘ill-treatment’. The latter term has been construed broadly and
encompasses any form of treatment causing physical pain or mental suffering to the
respective person.
The wounded, sick, and shipwrecked persons, who are deprived of liberty as a result of an
armed conflict or occupation, should not be subjected to any medical procedures which
are not consistent with generally accepted medical standards that would be applied under
similar medical circumstances to persons who are not deprived of their liberty.15 Thus it is
prohibited to carry out on the respective persons, even with their consent, physical
mutilations, medical or scientific experiments, removal of tissue or organs for
transplantation, except where such acts are justified.16 When cases of donations occur,
they should be given voluntarily and without any coercion or inducement, and that too
only for therapeutic purposes under conditions consistent with generally accepted medical
11
Art. 10 (2), AP I
12
Art. 12, GC I; Art. 12, GC II; Art. 3, GC III; Art. 16, GC IV; Art. 10, AP I and Art. 7 AP II
13
Art. 46, GC I; Art. 47, GC II, and Art. 20, AP I.
14
Art. 15, GC I; Art. 18, GC II; Art. 19, GC II; Art. 16, GC IV; Art. 10, AP I, and Art. 8, AP II.
15
Art. 12 (2), GC I and Art. 12, GC II supplemented by the prohibition, found in Art. 11, AP I and
Art. 5(2)(e), AP II
16
In conformity with the conditions provided for in Art. 11(1), AP I (see Art. 11(2), AP I)
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standards and controls designed for the benefit of both the donor and the recipient.17
Moreover, the wounded, sick, and shipwrecked have the absolute right to refuse any
surgical operation.18 Additionally, each party to a conflict is obliged to ‘keep a medical
record for every donation of blood for transfusion or skin for grafting [by the wounded,
sick, or shipwrecked] if that donation is made under the responsibility of that Party.’
Generally, each party to a conflict ‘shall endeavour to keep a record of all medical
procedures undertaken with respect to any person who is interned, detained or otherwise
deprived of liberty as a result’ of international armed conflict. The record is to be made
‘available at all times for inspection by the Protecting Power’.19
With regard to wounded, sick, and shipwrecked persons falling into the hands of a party
to an armed conflict, the latter is also under an obligation to record any particulars which
may assist in the person's identification and to forward all pertinent information to the
appropriate information bureau, instituted by each party as an official information bureau
and obliged to cooperate with the Central Prisoners of War Information Agency of the
ICRC.20
3.7 Special provisions for shipwrecked
GC II applies in the first place to an IAC taking place wholly or partly at sea.[18] The term
‘sea’ is central to determine the applicability of GC II. Once wounded, sick and
shipwrecked members of the armed forces are put ashore, GCII ceases to apply and the
persons immediately benefit from protection under GC I.[19] The principle applies
regardless of the ’branch’ of the armed forces a person belongs to; a member of the air
force shipwrecked at sea is protected by GC II as much as a member of the navy wounded
17
Art. 11(3), AP I
18
Art. 11(5), AP I
19
Art. 11(6), AP I
20
Art. 16, GC I; Art. 19, GC II; and Arts, 122 and 123, GC III).
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on land is protected by GC I. The Additional Protocol, applicable to IAC, supplements
GC II. It provided several definitions relevant to the wounded, sick and shipwrecked at
sea. The Additional Protocol also extends the protection of GCII to all civilians wounded,
sick or shipwrecked,[20] and to other medical ships and crafts than those mentioned in
GC II. Additional Protocol II, applicable to NIAC, complements the provisions of Article
3 of GC II.
3.8 Special Protection under Geneva Convention II
While the basic protection provided in both Conventions is the same, the scope of persons
covered by that protection in GC II is adapted to warfare at sea. The Convention protects
not only the wounded and sick, but also the shipwrecked. Thus, the text of common
Article 3 is worded slightly differently in GC II compared to the other three Conventions.
Whereas in GC I, GC III and GC IV reference are made only to the “wounded and sick”,
GC II consistently refers to the “wounded, sick and shipwrecked”. For the purpose of
common Article 3, a “shipwrecked” person is someone who, as a result of hostilities or
their direct effects, is in peril at sea or in other waters and requires rescue. A person would
also qualify as shipwrecked where, for example, hostilities adversely affected the ability of
those who would normally rescue them to do so in fact. It should be noted that a person
in such a situation must not commit any hostile acts. Likewise, Article 12, which
establishes the general obligation of States to respect and protect in all circumstances,
refers to the “wounded, sick and shipwrecked” in GC II, whereas in GC I refers only to
the “wounded and sick”.
Another major difference between GC I and GC II relates to the objects that are protected
under them. While ambulances and other land-based medical transports are protected
under GC I, medical transports used on water are protected under GC II in equal
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measure.21 Recognizing an important means by which its obligations may be
implemented, GC II affords protection to hospital ships and coastal rescue craft, as well
as to ships chartered for the transport of medical equipment and to medical aircraft.22 The
operation of hospital ships constitutes one way in which parties to the conflict can carry
out their obligation to protect and care for the wounded, sick and shipwrecked at sea. To
be able to fulfil this function, hospital ships enjoy special protection “at all times”, and
they may neither be attacked nor captured.23 The hospital ship’s personnel and crew are
likewise accorded special protection, owing to the vital role they play in the ship’s
performance of its humanitarian functions.24 However, they lose protection if they are used
to commit acts harmful to the enemy beyond their humanitarian objectives.25
3.9 Medical and religious personnel
Even though the concept of combatants excludes medical and religious personnel and GC
I and II, mainly aim to protect and ensure care for the wounded, sick and shipwrecked,
IHL also extends protection to medical personnel, administrative support staff and
religious personnel.26
21
Art. 35, GC ll
22
Arts. 22, 24, 27, 38 and 39 ibid.
23
Art. 22(1), ibid.
24
Art. 36, ibid.
25
Art. 34(1), ibid.
26
Arts. 24 and 25, GC l
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3.10 Definition of medical and religious personnel
‘Medical’ personnel” means a person assigned, by a Party to the conflict, exclusively to
the medical purposes or to the administration of medical units or to the operation or
administration of medical transports. Such assignments may be either permanent or
temporary. The term includes: medical personnel of a Party to the conflict, both military
or civilian; those assigned to civil defense organizations; medical personnel of national
Red Cross and Red Crescent, Societies and other national voluntary aid societies duly
recognized and the medical personnel of medical units or medical transports.27
‘Religious personnel’ are defined as military or civilian persons, such as chaplains, who
are exclusively engaged in the work of their ministry and are attached to; the armed forces
of a Party to the conflict; to medical units or medical transports of a Party to the conflict;
or to civil defence organizations. The protection to religious personnel is accorded
irrespective of them being either permanent or temporary.28
3.11 Special protection of medical and religious personnel
IHL provides that medical and religious personnel are not to be attacked on the battlefield
and must be allowed to perform their medical or religious duties.29 Likewise, if they end
27
Art. 8(c), AP l
28
Art. 8(d), AP l
29
Arts. 24-27, GC II; Arts 36 and 37, AP I; Arts. 15-20, AP II; Art. 9; CIHL, Rule 25
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up in the hands of the adverse party, permanent medical and religious personnel are not
to be considered prisoners of war and may only be retained if they are needed to care for
prisoners of war.30 The civilians who are caring for sick and wounded combatants and
civilians are also protected under IHL, which includes the right for inhabitants of the
conflict zone to collect and care for wounded and sick. The civilian population has even
an explicit obligation to respect the wounded and sick.31 Aid and medical societies
including staff of National Red Cross and Red Crescent Societies are granted the same
protection if requirements are met with.32 Military religious personnel benefit under the
same conditions than military medical personnel from the same protections and status
than medical personnel.
This special protection accorded to the medical and religious personnel are unfettered.
However, fixed medical establishments and mobile medical units lose their special
protection if they engage in combat activities beyond their humanitarian duties. In any
event they can be attacked only after due warning and after a time limit given to stop such
acts has remained unheeded.33 However, it is important to note that the medical and
religious personnel do not lose protection merely for the reason that they are armed with
light individual weapons and that the personnel uses such weapons in their own defence
or that of the wounded and sick. Such self-defence or defence of others may obviously only
be directed against unlawful attacks.34
30
Arts. 28 and 30, GC II; Art. 37, GC III; Art. 33, AP I
31
Art. 18, GC IV; Art. 20(1), GC I
32
Arts. 26 and 27, GC II; Arts. 25 and 36, AP I
33
Arts. 21 and 22, GC I; Art. 21, GC II; Art. 34, AP I; Art. 13(1), CIHL, Rule 25
34
Art. 22, GC II; Art. 35, AP I, Art. 13.
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3.12 Case Study
Combatants and non-combatants
Indicate whom among the following persons are combatants during an international
armed conflict:
1. A civilian whose family is attacked by soldiers, kills one of them with a gun;
2. A civilian who is arrested while carrying a message on behalf of a rebel

organization;
3. Regular armed combatants who have committed some war crimes;
4. A military employee of the Ministry of Defence is arrested in another State for

having transmitted to his State’s authority’s confidential information.
5. Members of medical corps of the military are arrested for possessing arms for self-
defence;
6. Inhabitants of a non-occupied territory, who on the approach of the enemy

spontaneously take up arms to resist the invading forces without having had time to form
themselves into regular armed units, provided that they carry arms openly and comply
with IHL.
Answer: All cases except 3) are non-combatants. 4) Falls under the category of spy who
is not protected under IHL.
1. Benoit, James P. “Mistreatment of the wounded, sick and shipwrecked by the
International Committee of the Red Cross study on customary International
Humanitarian Law.” George Washington Unvi Washington, DC School of Law,
2008.
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2. Bouvier Antoine, “Humanitarian Protection and Armed Conflicts at Sea: Means
and Methods of Identifying Protected Craft”, 14 Syracuse Journal of International
Law and Commerce, 759-765 (1988).
1. Baccino-Astrada Alma, Manual on the Rights and Duties of Medical Personnel in
Armed Conflicts, Geneva, ICRC/League, 1982, p. 77. de Currea-Lugo Victor,
“Protecting the Health Sector in Colombia: A Step to Make the Conflict Less
Cruel”, in IRRC, No. 844, December 2001, pp. 1111-1126.
2. Cauderay Gérald C, “Visibility of the Distinctive Emblem on Medical
Establishments, Units, and Transports”, in IRRC, No. 277, July-August 1990, pp.
295-321.
3. Brownlie Ian, International Law and the Use of Force by States, Oxford,
Clarendon Press, 1963, p. 532.
4. Dinstein Yoram, War, Aggression and Self-defence, Cambridge, CUP, 2001, p.
300.
5. How Does Law Protect in War, Volume 1, Outline of International Humanitarian
Law Possible Teaching Outlines, ICRC.
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CHAPTER 4
PROTECTION OF PRISONERS OF WAR
4.1 Who is a Prisoner of War?
The status of Prisoner of War only applies in International Armed Conflicts. Prisoners of
War are usually members of the armed forces of one of the parties to a conflict, who are
hors de combat (out of combat through surrender or incapacitation see infra 4.1.1.), and
fall into the hands of the adverse party. The Geneva Convention (GC) III and Additional
Protocol (AP) I also classify other categories of persons who have the right to Prisoner of
War status or may be treated as Prisoners of war.
Provisions of international humanitarian law (IHL) prohibit Prisoners of war from being
prosecuted for taking a direct part in hostilities. Their detention is not a form of
punishment, but only aims to prevent further participation in the conflict. They must be
released and repatriated without delay after the end of hostilities. The detaining power35
may prosecute them for possible war crimes, but not for acts of violence that are lawful
under IHL. Prisoners of war must be treated humanely in all circumstances. They are
protected against any act of violence, as well as against intimidation, insult, and public
curiosity. IHL also defines minimum conditions of detention covering such issues as
accommodation, food, clothing, hygiene and medical care.
4.2 Hors de combat
Hors de combat is a French term used in international law, literally meaning "outside the
fight," to refer to military personnel who are incapable of performing their military
function. Examples include fighter pilots and aircrew members parachuting from an
35
The State Party in whose custody the PWs are detained.
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aircraft in distress, as well as the sick, wounded, detained, shipwrecked or otherwise
disabled. Military personnel who is a hors de combat is normally granted special protections
according to the laws of war, including prisoner of war status.
In addition to personnel, hors de combat may refer to anything out of action or disabled.
AP I defines;
A person is 'hors de combat' if:
(a) he is in the power of an adverse Party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by wounds or
sickness, and therefore is incapable of defending himself; provided that in any of
these cases he abstains from any hostile act and does not attempt to escape.
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4.3 Combatant status and prisoner of war status
As in the case of wounded, sick and shipwrecked we discussed in Module 3, the Geneva
Convention identifies PWs also on the basis of combatant status (please refer to the
Module 3 for the definition and concept of combatants). An enemy combatant in an
international armed conflict (IAC) can be attacked irrespective of time and circumstances.
This is true until they cease to be combatants (retire from military service and become
civilians) or gain immunity from attack by becoming hors de combat (through surrender
or incapacitation). The very essence of PW concept is that combatants have the right to
engage in armed conflicts and they should not be penalized for the same once they stop
fighting. Further, once they are no longer taking part in armed conflict they should be
protected. A combatant who is an hors de combat and falls into the hands of the enemy is
entitled to the privileges of a PW.
However, the privileged status of a PW is lost if the captured person is an unlawful
combatant. The distinction between combatants and unlawful combatants is very
important in the protection regime under IHL, because it is corollary to the distinction
between combatants and civilians. A civilian who take part in hostilities will lose their
protection and can be attacked by the enemy combatants, and once captured such civilians
are not entitled to PW status. Following are categories of persons if captured by the enemy
combatants are not entitled to PW status and will be considered as unlawful combatants
if they were involved in the conflict:
• A civilian taking part in hostilities
• Spies36
36
Art. 46, AP I
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• Mercenaries37
More than denial of PW status, the other consequences of unlawful combatant status
include automatic detention (unlike a civilian) and liability to be prosecuted and punished
by military tribunals for taking part in the conflict. It is worthy to note that a PW cannot
be prosecuted for taking part in conflict as he is a lawful combatant. However, PW can be
prosecuted for war crimes committed during his lawful combatant’s role. Hence there are
differences between prosecution for war crimes and that of being an unlawful combatant.
4.4 Who is a Prisoner of War?
Article 4 of GC III and Article 44 of the AP I define who is a PW.
As per the Article 4 (A) of GC III PW is a person belonging to one of the following
categories, who have fallen into the power of the enemy:
• Members of the armed forces of a Party to the conflict, as well as members of
militias or volunteer corps forming part of such armed forces
• Members of other militias and members of other volunteer corps, include those of
organized resistance movements, belonging to a Party to the conflict and operating
37
Art. 47, AP I
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in or outside their own territory, even if this territory is occupied, provided that
such militias or volunteer corps, including such organized resistance movements,
fulfil the following conditions:
o that of being commanded by a person responsible for his subordinates;
o that of having a fixed distinctive sign recognizable at a distance;
o that of carrying arms openly;
o that of conducting their operations in accordance with the laws and customs
of war
• Members of regular armed forces who profess allegiance to a government or an
authority not recognized by the Detaining Power
• Persons who accompany the armed forces without actually being members thereof,
such as civilian members of military aircraft crews, war correspondents, supply
contractors, etc., if hold an identity card issued by the state party to which they
belong
• Members of crews, including masters, pilots and apprentices, of the merchant
marine and the crews of civil aircraft of the Parties to the conflict, who do not
benefit by more favourable treatment under any other provisions of international
law
• And Levee en masse i.e. inhabitants of a non-occupied territory, who on the approach
of the enemy spontaneously take up arms to resist the invading forces, without
having had time to form themselves into regular armed units, provided they carry
arms openly and respect the laws and customs of war
Article 4 (B) goes on creating two other categories who should be treated as PW, one
relating to the members of armed forces who have been released from detention in
occupied territories and are then reinterned, and the other pertaining to members of armed
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forces of the Belligerent Parties who reach neutral territory and have to be interned there
under international law. Article 4(C) exempts the medical personnel and chaplains as
provided for in Article 33 of GC III as this article will no way affect their status.
Article 43 of the AP I lay down that armed forces consist of all organized armed forces,
groups and units which are under a command responsible to that Party and shall be subject
to an internal disciplinary system which, in compliance with the rules of international law
applicable in armed conflict. It further lays down 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, and have the right to participate directly in
hostilities.
Article 44 of AP I define PW as any combatant as defined under Article 43 who falls into
the power of an adverse party. It further mentions that violations of international law
applicable to armed conflicts by a person shall not deprive him of combatant or PW status.
However, if a combatant is not distinguishing himself from a civilian during a military
operation as per this article (i.e. carry weapons openly) shall forfeit his right to be a PW.
4.5 Protection of Prisoners of War
PW mentioned in Art 4 GCIII and Art 44 of AP I are entitled to special protection and
treatment. Even though they may be interned without any particular reason, the purpose
of such internment is not to punish them, but only to prevent them from taking part in
hostilities. The protection by those regulations is a compromise between the interest of the
detaining power and PW. PWs are accorded with this special status recognizing the fact
that combatants are acting upon the interest of their country, and once they are out of
combat they are entitled to be protected. IHL provisions set out specific rules for the
treatment of PWs. The GCIII 143 articles require that PWs be treated humanely,
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adequately housed and receive sufficient food, clothing and medical care. Its provisions
also establish guidelines on labour, discipline, recreation and criminal trial.
4.6 General protection of prisoners of war
It is to be understood that a PW is in the hands of the enemy Power, but not of the
individuals or military units who have captured them. Irrespective of the individual
responsibilities that may exist, the Detaining Power is responsible for the treatment given
to them.38 PW must at all times be humanely treated. Any unlawful act or omission by the
Detaining Power causing death or seriously endangering the health of a PW in its custody
including subjecting to physical mutilation or to medical or scientific experiments of any
kind which are not justified by the medical, dental or hospital treatment of the prisoner
concerned and carried out in his interest is prohibited, and will be regarded as a serious
breach of IHL. Likewise, PW must at all times be protected, particularly against acts of
38
Art. 12, GC III
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violence or intimidation, and against insults and public curiosity. Measures of reprisal
against prisoners of war are prohibited.39
PWs are entitled in all circumstances to respect for their persons and their honour. Women
shall be treated with all the regard due to their sex and shall in all cases benefit by treatment
as favourable as that granted to men. PW shall retain the full civil capacity which they
enjoyed at the time of their capture.40 The state detaining PW shall be bound to provide
free of charge for their maintenance and for the medical attention required by their state
of health.41 All PWs shall be treated equally irrespective of race, nationality, religious belief
or political opinion, or any other distinction founded on similar criteria.42
4.7 Specific provisions for treatment of Prisoners of War in captivity
Every PW, when questioned on the subject, is bound to give only their surname, first
names and rank, date of birth, and army, regimental, personal or serial number, or failing
this, equivalent information. PWs who, owing to their physical or mental condition, are
unable to state their identity, shall be handed over to the medical service. No physical or
mental torture, or any other form of coercion, may be inflicted on PW to secure from them
information of any kind whatever. PW who refuses to answer may not be threatened,
insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.43
Officers and prisoners of equivalent status shall be treated with the regard due to their rank
and age.44 Personal belonging of the PW shall remain in possession of the PW, including
their metal helmets and gas masks and like articles issued for personal protection. Only
39
Art. 13, GC III
40
Art. 14, GC III
41
Art. 15, GC III
42
Art .16, GC III
43
Art. 17, GC III
44
Art. 44, GC III
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weapons including arms, military equipment and military documents can be confiscated
from a PW. The Detaining Power may withdraw articles of value from PW only for
reasons of security; when such articles are withdrawn, the procedure laid down for sums
of money impounded shall apply.45
The Detaining Power may restrict the liberty of movement of the PW within the perimeter
of the PW camp. PW may be partially or wholly released on parole or promise, insofar as
is allowed by the laws of the Power on which they depend.46 No PW may at any time be
sent to, or detained in areas where they may be exposed to the fire of the combat zone, nor
may their presence be used to render certain points or areas immune from military
operations.47
4.8 Prescribed conditions in prisoner of war camps
IHL prescribes that separate dormitories are provided for women as well as men, with
specified space per PW.48 Sufficient food and water rations to be provided and messing
shall be in consultation with the PW themselves. Moreover, PWs should be allowed to
prepare their food if they wish to do so.49 Clothing, underwear and footwear shall be
supplied to prisoners of war in sufficient quantities by the Detaining Power, which shall
make allowance for the climate of the region where the prisoners are detained. Uniforms
of enemy armed forces captured by the Detaining Power should, if suitable for the climate,
be made available to clothe PW.50 Canteens shall be installed in all camps, where PW may
45
Art. 18, GC III
46
Art. 21, GC III
47
Art. 23, GC III
48
Art. 25, GC III
49
Art. 26, GC III
50
Art. 27, GC III
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procure foodstuffs, soap and tobacco and ordinary articles in daily use. The tariff shall
never be in excess of local market prices.51
The Detaining Power shall be bound to take all sanitary measures necessary to ensure the
cleanliness and healthfulness of camps and to prevent epidemics.
In any camp in which women PW are accommodated, separate conveniences shall be
provided for them.52 Every camp shall have adequate medical facility where PW may have
the attention they require, as well as an appropriate diet. Isolation wards shall, if necessary,
be set aside for cases of contagious or mental disease. Specialist treatment facility should
be provided to a PW when required and all associated expenses relating to medical facility
is to be provided by the detaining power.53 Medical inspections of PW shall be held at least
once a month.54
4.9 Prisoners of war and labour conditions
The Detaining Power may utilize the labour of PW who are physically fit, taking into
account their age, sex, rank and physical aptitude, and with a view particularly to
maintaining them in a good state of physical and mental health.55 Besides work connected
with camp administration, installation or maintenance, PW may be compelled to do only
such work which is not military in character or purpose.56
PW must be granted suitable working conditions, especially as regards accommodation,
food, clothing and equipment; such conditions shall not be inferior to those enjoyed by
nationals of the Detaining Power employed in similar work; account shall also be taken of
51
Art. 28, GC III
52
Art. 29, GC III
53
Art. 30, GC III
54
Art. 31, GC III
55
Art. 49, GC III
56
Art. 50, GC III
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climatic conditions. Conditions of labour shall in no case be rendered more arduous by
disciplinary measures.57 Unless they are a volunteer, no PW may be employed on labour
which is of an unhealthy or dangerous nature like the removal of mines or similar devices.
No PW shall be assigned to labour which would be looked upon as humiliating for a
member of the Detaining Power's own forces.58 The duration of the daily labour of PW,
including the time of the journey to and fro, shall not be excessive, and must in no case
exceed that permitted for civilian workers in the district, who are nationals of the
Detaining Power and employed on the same work.59
4.10 Transmission of information and monitoring

4.10.1 Transmission of information
GC III requires that a Central Prisoners of War Information Agency shall be created in a
neutral country. The International Committee of the Red Cross shall, if it deems
necessary, propose to the Powers concerned the organization of such an agency. The
function of the Agency shall be to collect all the information it may obtain through official
or private channels respecting prisoners of war, and to transmit it as rapidly as possible to
the country of origin of the prisoners of war or to the Power on which they depend. It shall
receive from the Parties to the conflict all facilities for effecting such transmissions.60
Immediately upon capture, or not more than one week after arrival at a camp, even if it is
a transit camp, likewise in case of sickness or transfer to hospital or another camp, every
PW shall be enabled to write directly to their family, through the Central Prisoners of War
Agency provided for under GC III as mentioned above.61
57
Art. 51, GC III
58
Art. 52, GC III
59
Art. 52, GC III
60
Art. 123, GC III
61
Art. 70, GC III
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Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the
conflict shall institute an official Information Bureau for PWs who are in its power.
Neutral or non-belligerent Powers who may have received within their territory a PW
referred to in Article 4, shall take the same action with respect to such persons. Within the
shortest possible period, each of the Parties to the conflict shall give its Bureau the
information regarding any enemy person who is a PW and has fallen into its power.
Neutral or non-belligerent Powers shall take the same action with regard to persons
belonging to such categories that they have received within their territory. The Bureau
shall immediately forward such information by the most rapid means to the Powers
concerned, through the intermediary of the Protecting Powers and likewise of the Central
Agency provided.62
If an escaped PW is recaptured, the Power on which they depend shall be notified thereof
through the official Information Bureau for PW as mentioned above.63 Likewise, in any
case in which the Detaining Power has decided to institute judicial proceedings against a
PW, it shall notify the Protecting Power (A Protecting Power is, a State instructed by
another State (known as the Power of Origin) to safeguard its interests and those of its
nationals in relation to a third Power (known as the Detaining Power)64 as soon as possible
and at least three weeks before the opening of the trial. This period of three weeks shall
run as from the day on which such notification reaches the Protecting Power at the address
previously indicated by the latter to the Detaining Power.65
Likewise, any judgment and sentence pronounced upon a PW shall be immediately
reported to the Protecting Power in the form of a summary communication, which shall
62
Art. 122, GC III
63
Art. 94, GC III
64
Art. 8, GC III and Art. 5, AP I
65
Art. 104, GC III
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also indicate whether they have the right of appeal with a view to the quashing of the
sentence or the reopening of the trial. Furthermore, if a PW is finally convicted or if a
sentence pronounced on a PW in the first instance is a death sentence, the Detaining
Power shall as soon as possible address to the Protecting Power.66 At the request of the
PW and, in all cases, after death, the Will executed by the PW shall be transmitted without
delay to the Protecting Power; a certified copy shall be sent to the Central Agency. Death
certificates in the form annexed to the present Convention, or lists certified by a responsible
officer, of all persons who die as PW shall be forwarded as early as possible to the PW
Information Bureau established GC III.67
4.10.2 Monitoring
Representatives or delegates of the Protecting Powers shall have permission to go to all
places where PW may be, particularly to places of internment, imprisonment and labour,
and shall have access to all premises occupied by PW; they shall also be allowed to go to
the places of departure, passage and arrival of prisoners who are being transferred. They
shall be able to interview the prisoners, and in particular the prisoners' representatives,
without witnesses, either personally or through an interpreter.
Representatives and delegates of the Protecting Powers shall have full liberty to select the
places they wish to visit. The duration and frequency of the visits shall not be restricted.
Visits may not be prohibited except for reasons of imperative military necessity, and then
only as an exceptional and temporary measure.
The Detaining Power and the Power on which the PW depends may agree, if necessary,
that compatriots of the PWs be permitted to participate in the visits.
66
Art. 107, GC III
67
Art. 120, GC III
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The delegates of the International Committee of the Red Cross shall enjoy the same
prerogatives. The appointment of such delegates shall be submitted to the approval of the
Power detaining the prisoners of war to be visited.68
4.11 Repatriation of prisoners of war
As PWs are only detained to restrain them from taking part in hostilities, they have to be
released and repatriated when they are unable to participate, i.e. during the conflict for
health reasons and as soon as active hostilities have ended.69 Under the influence of human
rights law and refugee law, those fearing persecution may not be forcibly repatriated. A
prisoner of war who freely expresses their objection will not be repatriated, loses prisoner-
of-war status and becomes a civilian who remains protected under GC IV until
resettlement.
1. Kastenberg Josh, "The Customary International Law of War and Combatant
Status: Does the Current Executive Branch Policy Determination on Unlawful
Combatant Status for Terrorists Run Afoul of International Law, or Is It Just Poor
Public Relations?", 39 Gonzaga Law Review (2003-2004) 495-537.
2. Yasmin Naqvi, Doubtful Prisoner-of-war Status, International Review of the Red
Cross, Vol. 847, 2002.
3. Gasser Hans-Peter, "Respect for Fundamental Judicial Guarantees in Time of
Armed Conflict: The Part Played by ICRC Delegates", in IRRC (No. 287, March-
April 1992), pp. 121-142.
68
Art. 126, GC III
69
Arts. 109 – 119, GC III
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1. Bogar Thomas J., "Unlawful Combatant or Innocent Civilian? A Call to Change
the Current Means for Determining Status of Prisoners in the Global War on
Terror", 21(1) Florida Journal of International Law (April 2009) 29-91.
2. Droege Cordula, "Transfer of Detainees: Legal Framework, Non-Refoulement and
Contemporary Challenges", in IRRC, Vol. 90, No. 871, September 2008, pp. 669-
701.
3. Brownlie Ian, International Law and the Use of Force by States (Oxford,
Clarendon Press, 1963), p. 532.
4. Dinstein Yoram, War, Aggression and Self-defence (Cambridge, CUP, 2001), p.
300.
5. “How does Law Protect in War”, 1, Outline of International Humanitarian Law
Possible
Teaching Outlines
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CHAPTER 5
PROTECTION OF CIVILIANS
5.1 Definition and Concept of Civilians under IHL
Increasingly, civilians make up the overwhelming majority of the victims of armed
conflict, even though international humanitarian law (IHL) stipulates that attacks shall
only be directed at combatants and military objectives, and that civilians and civilian
objects shall be respected. However, even though IHL is respected, civilians may become
victims of armed conflicts, as collateral damage, i.e. attacks and military operations have
a spillover effect on civilians. Civilians need to be respected by all parties to the armed
conflict including in whose hands they have fallen.
IHL provides that civilians under the power of enemy forces must be treated humanely in
all circumstances without any adverse distinction. They must be protected against all
forms of violence and degrading treatment, including murder and torture. Moreover, in
case of prosecution, they are entitled to a fair trial affording all essential judicial
guarantees.
The protection of civilians extends to those trying to help them, in particular medical units
and humanitarian or relief bodies providing essentials such as food, clothing and medical
supplies. The warring parties are required to allow access to such organizations like
International Committee of the Red Cross.
While IHL protects all civilians without discrimination, certain groups are singled out for
special mention. Women and children are highly vulnerable during armed conflicts. So
too are those who flee their homes and become internally displaced or refugees.
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The general idea that civilians shall not be attacked and shall be respected is that war is
not a civil matter and that civilian shall consequently not to be affected by the hostilities,
as long as they do not participate directly in the hostilities. The principle applies in both
International Armed Conflicts (IAC) and Non-International Armed conflicts (NIAC).70
5.2 Who are civilians?
Generally, civilians are defined as persons who are not members of the armed forces under
IHL.71 Under Article 4 of the Geneva Convention (GC) IV, protected persons are those
who at a given moment find themselves, in case of a conflict or occupation, in the hands
70
Art. 27, GC IV: 51 AP I for IAC: Art. 3 Common GC I-IV: Art. 4, 13 AP II for NIAC, ICRC
Customary Rule 6 for both.
71
ICRC Customary Rule 5.
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of persons or a Party to the conflict or Occupying Power of which they are not nationals.
Hence the protection is not given if a civilian is in the hands of their own government or
they are from a national of a country who is not a party to the Convention. It is to be noted
that the persons protected under GCI, GCII and GCIII are not protected under GC IV.72
The civilian population comprises all persons who are civilians. In case of doubt whether
a person is a civilian, that person shall get the benefit of doubt and be considered to be a
civilian. The presence within the civilian population of individuals, who are not civilians
within the definition of civilians, does not deprive the population of its civilian character.73
Civilians are protected as long as they do not take any active part in the hostilities.74 The
civilians who take any direct part in the conflict lose the protection as civilians for the
duration of the participation.75
5.3 Civilians who are considered as combatants owing to their association with
combatants
The following categories are not considered as civilians but as combatants entitled to the
status of prisoner of war:76
• Persons who accompany the armed forces without being members thereof (war,
correspondent, supply contractors, etc.);
• Members of crews of the merchant marine and civil aircrafts;
• inhabitants of a non-occupied territory, who on the approach of the enemy
spontaneously take up arms to resist the invading forces, without having had time
72
Art. 4, GC IV and Art. 50, AP I
73
Art. 50, AP I
74
Art.4, GC IV: Art.50, AP I).
75
Art.51, par.3, AP I: Art.13, para.3, AP II.
76
Art.4, GC III
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to form themselves into regular armed units, provided they carry their arms openly.
(Levee en Masse).
5.4 Some categories of civilians who are specifically protected
Following categories of civilians are specifically protected under IHL owing to their
occupations and vulnerability:
• Journalists.77 However, journalists are to be distinguished from war correspondents
who are also civilians, but because they accompany the armed forces of a State
without being members thereof are considered as combatants entitled to the
prisoner of war status upon capture;78
• Humanitarian relief personnel;79
• Internally displaced persons;80
• Aliens and refugees;81
• Personnel involved in a peace-keeping mission; 82 and
• Most vulnerable persons, such as children, expectant women, mothers of young
children, and elders are granted particular protection and care.83
5.5 Civilians defined under NIAC
In NIAC, IHL makes no distinction among civilian population of the State on the territory
of which the conflict occurs: all civilians are equally protected as persons not taking part
in the hostilities.
77
Art.79, AP I: ICRC Customary Rule 34
78
Art.4, GC III
79
Art71.2, AP I: Art.18, AP II: ICRC Customary Rule 31
80
Art.44, 45, 49 and 70 GC IV; art.85 AP I, art.17 AP II
81
Art.35-46 GC IV
82
Convention on the Safety of UN and Associated Personnel of 9 December 1994, ICRC
Customary Rule 33
83
See GC IV, Part II (Arts. 13-26) and AP I, Section II of Part IV (Arts. 72-79), in particular the
fundamental guarantees provided for in Art. 75)
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5.6 The protection of the civilian population against the effects of hostilities
In IHL, protections for civilians can be classified broadly into two categories: first category
of protection is prescribed for all civilians.84 The second category is more extensive and is
applicable only to ’protected civilians’, who are basically in enemy hands.85 The second
category of protected civilians are further subdivided into three groups:
• Civilians who find themselves on enemy territory;86
• Civilians whose territory is occupied by the enemy;87 and
• While the third encompasses provisions common to the enemy’s own territory and
occupied territories.88
This goes to show that the rules cover only civilians mentioned above and civilians who
are neither (enemy civilians) on the territory of a belligerent nor on occupied territory are
covered under it.89
5.7 Basic rules of civilian protection
In order to ensure respect for and protection of the civilian population and civilian objects,
the Parties to the conflict shall at all times distinguish between civilian population and
combatants, and between civilian objects and military objectives, and accordingly shall
direct their operations only against military objectives.90
The civilian population and individual civilians shall enjoy general protection against
dangers arising from military operations. To give effect to this protection, the following
84
Art. 14.1, 17, 23.1, 24, 50 GC IV.
85
Protected person as defined in Art. 4 of GC IV
86
Arts. 35-46, GC IV
87
Arts. 47-78, GC IV
88
Arts. 27-34, GC IV
89
Art. 48, AP I
90
Ibid.
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rules, which are additional to other applicable rules of international law, shall be observed
in all circumstances:91
• The civilian population including individual civilians, shall not be the object of attack
• Acts or threats of violence to spread terror among the civilian population are
prohibited
• Civilians shall enjoy the protection afforded by IHL, unless and for such time as they
take a direct part in hostilities
• Attacks against the civilian population or civilians by way of reprisals are prohibited.
• The presence or movements of the civilian population or individual civilians shall not
be used to render certain points or areas immune from military operations, in
particular, in attempts to shield military objectives from attacks or to shield, favour
or impede military operations. The Parties to the conflict shall not direct the
movement of the civilian population or individual civilians in order to attempt to
shield military objectives from attacks or to shield military operations
• Any violation of these prohibitions shall not release the Parties to the conflict from
their legal obligations with respect to the civilian population and civilians, including
the obligation to take the precautionary measures provided for in Article 57
• Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be
directed at a specific military objective; or
(c) Those which employ a method or means of combat the effects of which
cannot be limited as required by this Protocol; and consequently, in each
91
Art. 51, AP I
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such case, are of a nature to strike military objectives and civilians or
civilian objects without distinction.
• Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a
single military objective a number of clearly separated and distinct
military objectives located in a city, town, village or other area
containing a similar concentration of civilians or civilian objects; and
(b) an 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.
5.8 Protection of civilian objects
Civilian objects also shall not be the object of attack or reprisal. Civilian objects are all
objects which are not military objectives, and attacks shall be limited strictly to military
objectives.92 In case of doubt whether an object which is normally dedicated to civilian
purposes, such as a place of worship, a house or other dwelling or a school, is being used
to make an effective contribution to military action, it shall be presumed not to be so
used.93
Likewise, starvation of civilians as a method of warfare is prohibited. Hence it is prohibited
to attack, destroy, remove or render useless objects indispensable to the survival of the
civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs,
92
Insofar as objects are concerned, military objectives are limited to those objects which by their nature,
location, purpose or use make an effective contribution to military action, and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military
advantage.
93
Art. 52, AP I
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crops, livestock, drinking water installations and supplies and irrigation works, for the
specific purpose of denying them their sustenance value to the civilian population or to the
adverse Party, whatever the motive, whether in order to starve out civilians, to cause them
to move away, or for any other motive.94
Care shall be taken in warfare to protect the natural environment against widespread, long-
term and severe damage. This protection includes a prohibition of the use of methods or
means of warfare which are intended or may be expected to cause such damage to the
natural environment and thereby to prejudice the health or survival of the population.
Attacks against the natural environment by way of reprisals are prohibited.95
Works or installations containing dangerous forces, viz. dams, dykes and nuclear electrical
generating stations, shall not be made the object of attack, even where these objects are
military objectives, if such attack may cause the release of dangerous forces and
consequent severe losses among the civilian population.96
5.9 Special protection of women
Women are entitled to same protection as men if they are wounded, sick or shipwrecked,
as civilians, as members of the civilian population or as combatants, according to their
status and may not be discriminated against.97 However, preferential treatment is given to
women in some particular cases, taking into account the fact that women are more
vulnerable. For example, women are specially protected against any attack on their sexual
integrity, in particular against rape, enforced prostitution or any form of indecent assault.98
94
Art. 54, AP I
95
Art. 55, AP I
96
Art. 56, API
97
Common Art. 3, GC I-IV; Art. 1 2, GC I-II; Art.16, GC III; Arts. 13 and 27(3), GC IV
98
Art. 27, GC IV
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Moreover, IHL specially protects pregnant women and maternity cases against the effects
of war,99 and stipulates that during occupation, such preferential treatment is not to be
hindered by the occupying power.100 Finally, female prisoners of war or female civilian
internees also benefit from specific rules.101 For example, IHL seeks to protect women’s
sexual integrity102 and to ensure that due attention is paid to pregnant and nursing
mothers,103 while preventing States from discriminating against women belonging to the
enemy party.104 The special protection afforded to women in time of war, and the
prohibition of rape and other forms of sexual violence were both recently recognized as
having attained customary status.105
5.10 Special protection of children
As said above, children are also entitled to two protections, first, protected by IHL if they
are wounded, sick or shipwrecked, as civilians and as members of the civilian population.
Secondly, they also benefit from special protection because of their vulnerability. Every
armed conflict leaves numerous children without resources or separated from their
families; a situation that renders them even more vulnerable. Hence, IHL requires specific
rules aimed at protecting children from the effects of hostilities, from any form of indecent
assault, or from any other danger arising from the general circumstances of a war
situation.106
Another major area where IHL aims to regulate is the case of child soldiers. Parties to
conflicts may not recruit children under fifteen into armed forces and have to ensure that
99
Arts. 14, 16, 21 and 22, GC IV
100
Art. 50, GC IV
101
Art. 76(2), AP I
102
Arts. 25, 97 and 108, GC III; Arts. 76, 85, 119 and 124, GC IV
103
Arts. 89 and 132, GC IV; Art. 76(3), AP I; Art. 6(4), AP II
104
Art. 88, GC III
105
ICRC, Customary International Humanitarian Law [Part C., Rules 134 and 93]
106
See for example, Arts. 14, 17, 23, 24, 38(5), 50, 51, 68, 76, 82, 89, 94 and 132, GC IV; Arts. 70,
77 and 78, AP I; Art. 4 (3)(e), AP II
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they do not take a direct part in hostilities.107 In Additional Protocols I and II and Art. 38
of the Convention on the Rights of the Child, the age threshold for joining armed forces is
fifteen; the Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict108 raises it to eighteen, except that States may
accept voluntary enrolment of persons under eighteen into military schools, thus
establishing an inequality between governmental forces and non-State armed groups. If
children nevertheless participate in hostilities, they will still benefit, if captured, from
preferential treatment.109 If they are, despite the above-mentioned prohibitions, members
of armed forces, they benefit from combatant and prisoner-of-war status. Although the
participation of children in hostilities is prohibited, it was nonetheless necessary to ensure
that they are protected, if captured. There is no age limit for entitlement to prisoner-of-war
status; age may simply- be a factor justifying privileged treatment. However, a child
combatant under age fifteen if captured cannot be sentenced for having borne arms. Since
the prohibition contained in Article 77, paragraph 2, of Protocol I is addressed to the
Parties to the conflict and not to the children, the participation of the latter in hostilities
does not constitute a breach of the law by them.110
5.11 Refugees and displaced persons in IHL
IHL provisions intend to prevent movements of civilians brought about by armed conflicts.
For example, prohibitions exist against direct or reprisal attacks on civilians, including
those intended to spread terror among the population and against the starvation of
civilians.111 The IHL of NIAC contains a general prohibition of forced movements of
107
Art. 77(2), AP I; Art. 4(3)(c), AP II.
108
Optional Protocol on the Convention on the Rights of the Child, on the Involvement of Children
in Armed Conflict
109
Art. 77, AP I
110
Commentary on the Additional Protocols, p. 902, para 3194
111
See Arts. 51 and 54, AP I
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civilians, by prohibiting any compulsion to leave their own territory for reasons connected
with the conflict.112 The provisions of IAC stipulate such a general prohibition for occupied
territories by prohibiting individual or mass forcible transfers, as well as deportations of
protected persons.113 Recognizing that such situations and population movements may
occur for reasons other than armed conflict, IHL provides protection to both displaced
persons and refugees.
5.12 Special protection for displaced persons
Displaced persons are civilians fleeing within their own country, e.g. from armed conflict.
IHL protects those displaced because of IAC, e.g. grants them the right to receive items
essential to survival, especially medical supplies and food materials.114 Civilians displaced
by internal armed conflict enjoy similar but less detailed protection.115
5.13 Special protection for refugees
Refugees, as defined by the United Nations Convention on Refugees and some other
regional treaties, are those who fled their country because of fear of persecution. However,
the Organization of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa gives a broader definition of refugees, and brings people fleeing armed
conflicts also under the concept of refugee. IHL also protects refugees, as civilians affected
by hostilities, if they have fled to a State taking part in an international armed conflict.116
The protection is offered similar to civilians fleeing to a State beset by internal armed
conflict.117 IHL specifically protects refugees entering the territory of an enemy State
against unfavourable treatment based on their nationality.118 Those considered refugees
112
Art. 17, AP II
113
Art. 49, GC IV
114
Art. 23, GC IV; Art. 70, AP I
115
Common Art. 3, GC I-IV; P I*I
116
Arts. 35 to 46, GC IV
117
Common Art. 3, GC I-IV and AP II
118
Art. 44, GC IV
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prior to the outbreak of hostilities (including those from a neutral State) are always
considered protected persons under the IHL of international armed conflicts,119 which also
provides special guarantees for those who fled to the territory which becomes occupied by
the State of which they are nationals.120 Finally, regarding non-refoulement, (non-
refoulement is a principle of international law that forbids a country receiving refugees
from returning them to a country in which they would be in likely danger of persecution)
the Conventions expressly provide that protected persons may not be transferred to a State
where they fear persecution on political or religious grounds.121
5.14 Special rules on occupied territory
The IHL of military occupation protects all civilians. However, the nationals of the
occupying power122 are not protected unless they are refugees.123 The lawfulness or
unlawfulness of occupation cannot deprive protected persons of the protection afforded by
IHL.124 The rules of IHL on occupied territories apply whenever, during an armed conflict,
a territory comes under the control of the enemy of the power previously controlling that
territory,125 as well as in every case of belligerent occupation, even when it does not
encounter armed resistance, and there is therefore no armed conflict.126
5.15 Obligations of the civilians
The civilians have no obligation towards the occupying power other than the obligation
inherent in their civilian status, i.e. not to participate in hostilities. Because of that
obligation, IHL does not allow them to violently resist occupation of their territory by the
119
Art. 73, AP I
120
Art. 70(2), GC IV
121
Art. 45(4), GC IV
122
Art. 4(1), GC IV
123
Art. 73, AP I; Art. 70(2), GC IV
124
Art. 47, GC IV
125
Art. 42, The Hague Regulations 1907; Art. 2(1), GC IV
126
Art. 2(2), GC IV
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enemy except in the cases of Levee en masse127 or to try to liberate that territory by violent
means. If they commit hostile acts, they may be punished under legislation introduced by
the occupying power, and may lose the privileges accorded to civilians under GC IV.128
5.16 Obligations of the occupying power
The primary obligation of the occupying power is to permit life in the occupied territory
to continue as normally as possible. IHL mandates the following to ensure such normalcy
in the occupied territories:
• Local laws remain in force;129
• Local courts remain competent;130
• Private property may not be destroyed131 and may only be confiscated under local
legislation;132
• The local population may not be deported;133
• The occupying power may not transfer its own population into the occupied
territory;134
• The occupying power is also responsible for law and order in the occupied
territory;135
• The occupying power is responsible to ensure hygiene and public health;136
• The occupying power is responsible to ensure food and medical supplies.137
127
Art. 4(A)(6), GC III.
128
Art. 5, GC IV
129
Art. 43, The Hague Regulations 1907; Art. 64, GC IV
130
Art. 66, GC IV
131
Art. 53, GC IV
132
Art. 46, The Hague Regulations 1907
133
Art. 49(1), GC IV
134
Art. 49(6), GC IV
135
Art. 43, The Hague Regulations 1907
136
Art. 56, GC IV
137
Art. 55, GC IV
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The purpose of these provisions is to control the territory for the duration of the occupation
and keep the normal life of the civilians as much as possible, until the territory is either
liberated by the former sovereign or transferred to the sovereignty of the occupying power
under a peace treaty.
5.17 Case study
State Fomistan occupied a populated Island belonging to State Bomistan. Fomistan
denied free movement of food and medicines meant for civilians, claiming security of the
state. During the latter part of occupation Fomistan deported some of the Bomistan
civilians from the island and brought in its own civilians to the Island.
Questions:
1. Is the decision of deportation of Bomistan civilians and bringing in Fomistan
civilians to the Island lawful according to IHL?
2. Does the denial of free movement food and medicines lawful according to IHL?
Answer:
Q1: See Art. 49, GC IV
Q2: See Art. 55, GC IV
1. Maria Teresa Dutli, ‘’Captured Child Combatants” 278 International Review of
the Red Cross (31-10-1990).
2. Lavoyer Jean-Philippe, “Refugees and Internally Displaced Persons: International
Humanitarian Law and the Role of the ICRC”, 305 IRRC 162-180 (March-April
1995).
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3. Roberts Adam, “What is Military Occupation?”, 55 BYIL 249-305 (1984).
1. Gasser Hans-Peter, “The Protection of Journalists Engaged in Dangerous
Professional Missions”, 232 IRRC 3-18 (February 1983). Cauderay Gérald C,
“Visibility of the Distinctive Emblem on Medical Establishments, Units, and
Transports”, 277 IRRC 295-321 (July-August 1990).
2. Goodman Ryan, “The Detention of Civilians in Armed Conflicts”, 103 AJIL 48-
74 (2009).
4. Dinstein Yoram, War, Aggression and Self-defence (Cambridge, CUP, 2001), p.
300.
5. ‘’How Does Law Protect in War’’ in Outline of International Humanitarian Law I
(Possible Teaching Outlines, ICRC).
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CHAPTER 6
REGULATIONS IN WARFARE
6.1 What is ‘means and methods of warfare’ under IHL?
"Means and Methods of Warfare" in brief means weapons, tactics and strategy applied in
armed conflicts. International humanitarian law (IHL) limits both these in order to
achieve the following objectives:
• Distinguish at all times between civilians and combatants / civilian objects and
military objectives; and
• Prohibit superfluous injury or unnecessary suffering to combatants.
The IHL provisions governing means and methods of warfare contain two types of norms:
General principles banning certain effects; and specific rules addressing particular
weapons or methods. The distinction between ’means’ and ’methods’ is also related to the
way IHL regulates the use of weapons. It either prohibits the use of certain weapons in
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any circumstances owing to their inherent characteristics, or it merely restricts and limits
certain ways of using all weapons or certain specific weapons. For example, the
prohibition of indiscriminate effects may be relevant in relation to the very nature of the
effects of a weapon, and at the same time for any type of weapon that can potentially be
used indiscriminately.
It is to be noted at the outset itself, that most of the rules presented in this Module are
customary in nature and therefore applicable in both international and non-international
armed conflicts (IAC; NIAC). Some other important treaty sources of the rules are:
• The St Petersburg Declaration 1868 (especially the Preamble);
• The Hague Regulations of 1899 and 1907; The 1980 Convention on Certain
Conventional Weapons (“CCW”) and its Protocols;
• The 1977 Additional Protocols; The 1972 Biological Weapons Convention
(“BWC”);
• The Chemical Weapons Convention 1993 (“CWC”); and
• The Mine Ban Treaty 1997 (“CAPM”).
The following principles are paramount with respect to means and methods of warfare:
• The only legitimate object of war is to weaken the enemy’s military forces, for
which it is sufficient to disable the greatest possible number of enemy combatants;
• The right to choose methods and means of warfare is not unlimited;
• It is prohibited to employ methods (and means) of warfare of a nature to cause
superfluous injury or unnecessary suffering; and
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• In development, acquisition or adoption of new means or methods of warfare it
must be determined whether their employment is not prohibited in some or all
circumstances.
6.2 Prohibited means of warfare
The term ’means of warfare’ commonly relates to the regulation of weapons. Several
provisions of IHL applicable to IAC limit the means of warfare.138 The very purpose of
these provisions is to prohibit weapons causing indiscriminate attacks or superfluous
injury or unnecessary suffering. In practice, the application of this basic rule is always a
compromise between military necessity and humanity, as it has been interpreted as the
harm that would not be justified by military utility. It has led to efforts to prohibit and
restrict certain conventional weapons (e.g. dum-dum bullets, mines, incendiary weapons,
non-detectable fragments, and cluster munitions) and weapons of mass destruction (e.g.
chemical weapons, use of poison, bacteriological and biological weapons, and – without
success – nuclear weapons). The Geneva Conventions and Additional Protocols limit
means and methods of warfare (including those severely damaging the environment),139
but they neither prohibit nor restrict the use of any specific weapon. Recognizing that it is
much easier to prohibit a weapon’s use prior to its incorporation into a State’s arsenal,
Additional Protocol I also place constraints on the development of new weapons.140 There
are various other conventions which specifically prohibit certain types of weapons.141
138
Arts. 22 and 23(e), H R; Art. 35, P I
139
See Arts. 35(3) and 55, P I; see also Convention of 10 December 1976 on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques, Geneva, May 18, 1977
140
Art. 36, AP I
141
For example, the Declaration Concerning Expanding Bullets (adopted by the First Hague Peace Conference
of 1899); the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological Methods of Warfare [The Geneva Chemical Weapons Protocol] (extending the
Hague Regulations of 1899 prohibiting use of “poison or poisoned weapons”); the Convention on the
Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons
and on Their Destruction [See ICRC, Biotechnology, Weapons and Humanity [Part A.]], and the 1980 UN
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Following are some of the prominent prohibited/limited use weapons categories under
IHL:
• Explosive bullets;
• Dum-dum bullets;
• Certain conventional weapons like;
o Mines,
o Incendiary weapons,
o Weapons involving non-detectable fragments,
o Blinding weapons,
o Explosive remnants of war, and
o Cluster munitions.
• Chemical weapons;
• Poison;
• Bacteriological and biological weapons; and
• Nuclear weapons
“Expanding bullets, also known as dumdum bullets, are projectiles designed to
expand on impact, increasing in diameter to limit penetration and/or produce a
larger diameter wound for faster incapacitation. For this reason, they are used for
hunting and by some police departments, but are generally prohibited for use in
war. Two typical designs are the hollow-point bullet and the soft-point.”
Convention on the Prohibitions or Restrictions of Use of Certain Conventional Weapons which may be Deemed
to be Excessively Injurious or to have Indiscriminate Effects and subsequent Protocols.
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6.3 Prohibited methods of warfare
The concept of the method of warfare encompasses any tactical or strategic procedure
meant to outweigh or weaken the adversary. The limitations or prohibitions to resort to
specific methods of warfare stipulated in IHL are predicated on three premises:
• The choice of the methods of warfare is not unlimited;142
• The use of methods of a nature to cause unnecessary suffering or superfluous
injury is forbidden;143 and
• The only legitimate object of war is to weaken the military forces of the enemy.144
Under the specific heading ’prohibited methods of warfare’, two methods of warfare are
usually discussed, viz. perfidy and denial of the quarter. Unlike ruses of war,145 which are
lawful, perfidy146 is outlawed in IHL. Ruses of war are intended to mislead an adversary
or to induce him to act recklessly. Perfidy, on the contrary, invites the confidence of an
adversary and leads them to believe that they are entitled to or is obliged to provide
protection under the rules of IHL. The main aim of the prohibition of the denial of the
quarter147 is to protect combatants when they fall into enemy hands by ensuring that they
will not be killed. The objective is to prevent the following acts: to order that there shall
be no survivors and to threaten the adversary therewith, or to conduct hostilities on that
basis.
The other prohibited methods of warfare in contemporary IHL are,
142
The Hague Regulations 1907, Art. 22; Art. 35(1), AP I
143
The Hague Regulations 1907, Art. 23(e); Art. 35(2), P I
144
1868 St. Petersburg Declaration, Preamble
145
The Hague Regulations 1907, Art. 24; Art. 37(2), P I
146
The Hague Regulations 1907, Art. 23; Art. 40, P I
147
The Hague Regulations 1907, Art. 23(b); Art. 37(1), P I
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• warfare involving terror,148
• starvation,149
• reprisals against protected persons and objects,150
• pillage,151
• taking of hostages,152
• enforced enrolment of protected persons,153 and
• deportations.154
6.4 Means and Methods of Warfare: Finding the right balance
IHL limits armed conflicts by regulating means and methods of warfare to keep the right
balance between military advantage and humanitarian considerations. The balance
between military necessity and humanity is achieved through the application of the rules
of limitation, distinction, and proportionality
148
Art. 51(2), P I; Art. 13, P II
149
Art. 54, P I; Art. 14, P II
150
GC I-IV, Arts. 46/47/13(3)/33 respectively; Arts. 20 and 41-56, P I
151
The Hague Regulations 1907, Arts. 28 and 47; Art. 15, GC I; Art. 18, GC II; Arts. 16 and 33, GC
IV; Art. 4, P II
152
GC I-IV, common Art. 3; Art. 34, GC IV; Art. 75, P I
153
Art. 130, GC III; Art. 51, GC IV
154
Art. 49, GC IV; Art. 17, P II
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6.5 Military necessity
It is permissible to use the measures not forbidden by IHL, which are necessary to secure
the complete submission of the enemy as soon as possible with the least expenditure of
personnel and resources. This principle recognizes that use of force during armed conflict
is legal, within limits set out by IHL. Further, it allows that legitimate military targets
can be attacked/destroyed and enemy combatants killed, for legitimate military
purposes.155
6.6 The principle of humanity or humanitarian consideration
The very purpose of IHL aims at protecting the victims of armed conflict. Humanitarian
considerations prescribe that It is forbidden to inflict suffering, injury or destruction not
actually necessary to accomplish a legitimate military purpose. It stipulates that all
humans have the capacity and ability to show respect and care for all, even their sworn
enemies. The principle of humanity is central to most of the provisions in IHL
prescribing protection of victims, including wounded, sick and civilians.
6.7 Rules of limitation, distinction, proportionality and precautionary measures
As mentioned above the balance between military necessity and humanity is achieved
through the application of the rules of limitation, distinction, and proportionality. In this
section these rules are discussed in detail.
6.7.1 Limitation
The right of Parties to a conflict to choose methods and means of warfare is not
unlimited and this rule dates back to the St Petersburg Declaration 1868.156 The rule is
155
See Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles under 400 Grammes
Weight, Saint Petersburg, November 29/December 11, 1868, paras 2-3 of the Preamble. Original text in
French; English translation in Parliamentary Papers, Vol. LXIV, 1869, p. 659; reprinted from Schindler, D. &
Toman, J. (eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents
(4th ed., Leiden, Boston, M. Nijhoff, 2004), p. 91; also available on http://www.icrc.org/ihl ]
156
The Hague Regulations 1907, Art. 22; Art. 35(1), AP I
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codified in modern IHL treaties under Article 35 of AP I. The limitations to use of
means or method includes,
• Employing weapons, projectiles and material and methods of warfare of a nature
to cause superfluous injury or unnecessary suffering157
• Use of a method or means of combat which cannot be directed at a specific
military objective or the effects of which cannot be limited as required by IHL, in
particular the principle of distinction between civilians and combatants158
• Methods or means of warfare which are intended, or may be expected to cause
widespread, long-term and severe damage to the natural environment or to
objects indispensable to the survival of the civilian population159
6.7.2 Distinction
The rule of distinction requires that parties to a conflict shall at all times distinguish
between:
• The civilian population and combatants
• Military objectives and civilian objects
• Attacks shall be directed solely against combatants and military objectives
6.7.3 Proportionality
The rule of proportionality requires that collateral damage shall be proportionate to the
concrete and direct military advantage anticipated. Launching an attack which may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian
157
Art. 35(2), AP I; ICRC Customary Rule 70
158
Art. 51(4), AP I; ICRC Customary Rules 11-12 and 71
159
Art. 35(3), AP I; Art. 14, AP II; ICRC Customary Rule 54
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objects, or a combination thereof, which would be excessive in relation to the concrete
and direct military advantage anticipated, is prohibited.160
6.8 What is collateral damage?
Collateral damages are incidental loss of civilian life, injury to civilians and damage to
civilian objects.
6.8 What is a military advantage?
A military advantage is the total or partial destruction, capture or neutralization of a
combatant or military objective necessary for the ultimate submission of the enemy.
6.9 Prohibition on indiscriminate attack causing superfluous injury or unnecessary

suffering
IHL prohibition on the use of means or methods of warfare that are ‘indiscriminate’ and
'of a nature to cause superfluous injury or unnecessary suffering' is a rule of customary
160
Arts. 51(5)(b) and 57(2)(b), AP I; ICRC Customary Rule 14
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IHL applicable in all armed conflicts. This prohibition is one of the primary objectives
IHL would like to achieve in all armed conflicts.
6.10 Prohibition on indiscriminate means and methods
6.10.1 Indiscriminate weapons
Weapons that cannot be directed at a specific military objective, and the effects of which
cannot be limited to military objectives are prohibited by IHL. They are deemed
indiscriminate because they are of a nature to strike military objectives and
civilians/civilian objects without distinction. Aside from weapons that are indiscriminate
as a result of being outdated or imprecise, there are weapons that have been recognized
as inherently indiscriminate. These include poison and chemical, biological and nuclear
weapons. For most States in the world today, anti-personnel landmines also constitute
indiscriminate weapons because it is, in practice, very difficult to limit their effects to
military objectives.161 Similarly, the use of cluster munitions, which do not systematically
explode upon impact and therefore constitute a threat to civilians after they have been
launched.162
6.10.2 Indiscriminate attacks
Indiscriminate attacks include attacks that are carried out using indiscriminate weapons.
However, they also include attacks that use non-indiscriminate weapons but are not
directed at any specific military objective, like carpet bombing, and attacks that violate
the principle of proportionality, i.e. causing disproportionate casualties and destruction
among the civilian population in comparison with the military advantage expected.163
161
Art. 51(4)(b)-(c), AP I; ICRC Customary Rule 71
162
Cluster Ammunition Convention (CCM) 2008
163
Art. 51(4)-(5), AP I; ICRC Customary Rules 11-12
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6.10.3 Weapons Causing Superfluous Injury or Unnecessary Suffering
The Preamble of the St-Petersburg Declaration of 1868 states:
• That the object of warfare is to weaken the military forces of the enemy (by
disabling 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; and
• That, therefore, the employment of such arms would be contrary to the laws of
humanity.
The Hague Regulations of 1899 and 1907 on the Laws and Customs of War on Land,
and more recently Additional Protocol I Art. 35(2) codified the prohibition to employ
“arms, projectiles or materials which are of a nature to cause superfluous injury or
unnecessary suffering.” It is important to note that the prohibition is one of the few rules
of IHL aimed specifically at protecting combatants (as opposed to civilians), in this case
from unnecessary suffering.
6.10.3.1 What does the prohibition to cause superfluous injury or unnecessary

suffering mean?
While there is no universal agreement on what it means, States generally agree that
suffering that has no military purpose violates the rule. In its Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons (8 July 1996), the International Court
of Justice (ICJ) found that superfluous injury or unnecessary suffering consisted harm
that uselessly aggravated the suffering of combatants, that is to say “a harm greater than
that unavoidable to achieve legitimate military objectives.”
There are few examples of weapons that have been prohibited because they are of a
nature to cause superfluous injury or unnecessary suffering. Most are found in treaties
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prohibiting specific weapons (e.g. the prohibition against exploding bullets or blinding
laser weapons). Some weapons are considered by individual States (principally in
military manuals of their armed forces) to violate this rule, such as bayonets with
serrated (jagged) edges.164
6.10.3.2 Attacks Causing Superfluous Injury or Unnecessary Suffering
While the expression ‘unnecessary suffering or superfluous injury’ is generally used in
connection with the effects of weapons, it can also be relevant to certain methods of
warfare. For example, it may be argued that to threaten that there will be no survivors
(denial of a quarter) causes unnecessary suffering, i.e. suffering that serves no military
purpose, and is prohibited.165
6.11 Case study
1. Lumnia, a country in Eurasia has developed a stun gun which emits a special
electromagnetic wave that will paralyse the combatants for hours if it is used.
However, at the same time it may also incapacitate the person mentally for the
rest of his life. It is also impossible to use the weapon with precision to a specific
target.
2. Tutia, another country in Eurasia, has developed an improvised landmine which
will emit deadly poisonous gas on stepping on it and thereby killing any living
being in 5 KM diameter. The Prime Ministers of each country has asked their
Military Commanders and Legal
Advisers to recommend them on the production and use of the weapons. Kindly advise
on the use of weapon as a IHL legal adviser for both countries.
164
Art. 35(2), AP I; ICRC Customary Rule 70
165
Art. 40, AP I; ICRC Customary Rule 46
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Answer:
Q1: Indiscriminate weapon with superfluous injury and unnecessary sufferings; liable to
be banned.
Q2: Indiscriminate weapon which cannot distinguish between combatants and civilians;
liable to be banned.
1. Brown Bernard L., “The Proportionality Principle in the Humanitarian Law of
Warfare: Recent Efforts at Codification”, 10 Cornell International Law Journal
134-155 (1976).
2. Cassese Antonio, “The Prohibition of Indiscriminate Means of Warfare” in
Akkerman Robert J. (ed.), Declarations on Principles, A Quest for Universal
Peace Liber Amicorum Discipulorumque Prof. Dr Bert V.A. Röling, Leiden,
1977, pp. 171-194.
1. Holland Joseph, “Military Objective and Collateral Damage: Their Relationship
and Dynamics”, 7 YIHL (2004), 2007, 35-78.
2. Watkin Kenneth, “Assessing Proportionality: Moral Complexity and Legal
Rules”, in 8 YIHL (2005), 2007, 3-53.
4. Dinstein Yoram, The Conduct of Hostilities under the Law of International
Armed Conflict (Cambridge, CUP, 2010), p. 320.
5. “How Does Law Protect in War” Vol. 1, Outline of International Humanitarian
Law Possible Teaching Outlines,
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CHAPTER 7
HUMANITARIAN ASSISTANCE AND ROLE ON NON-GOVERNMENTAL

ORGANISATIONS
7.1 Fundamental humanitarian principles
The fundamental humanitarian principles are derived from the core principles, which have
long guided the work of the Red Cross and Red Crescent Movement. The Red Cross and
Red Crescent Movement comprises National Societies, the International Federation, and
the International Committee of the Red Cross (ICRC). The 20th International Conference
of the Red Cross and Red Crescent meeting in Vienna in 1965 proclaimed seven
fundamental principles upon which the Movement is based. These seven fundamental
principles are humanity, impartiality, neutrality, independence, voluntary service, unity
and universality. These principles are reaffirmed every four years at the opening ceremony
of the International Conference.
The principles are central to the work of all humanitarian organizations and are also
formally enshrined in two General Assembly resolutions. The first three principles
(humanity, neutrality and impartiality) are endorsed in General Assembly Resolution
46/182, which was adopted in 1991. General Assembly Resolution 58/114 (2004) added
independence as a fourth key principle underlying humanitarian action. The General
Assembly has repeatedly reaffirmed the importance of promoting and respecting these
principles within the framework of humanitarian assistance. Commitment to the
principles has also been expressed at an institutional level by many humanitarian
organizations. The first four humanitarian principles, which are universally accepted by
all organizations, are detailed below.
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7.1.1 Humanity
The principle of humanity says that human suffering must be addressed wherever it is
found. The purpose of humanitarian action is to protect life and health and ensure respect
for human beings by bringing assistance without discrimination, and to prevent and
alleviate human suffering wherever it may be found. Its purpose is to protect life and health
and to ensure respect for the human being. It promotes mutual understanding, friendship,
cooperation and lasting peace amongst all people.
7.1.2 Neutrality
Humanitarian actors must not take sides in hostilities or engage in controversies of a
political, racial, religious or ideological nature. This is to earn the confidence of all sides.
For example, organizations like the ICRC abstain from making public pronouncements
about specific acts committed in violation of IHL, nor communicate reports (for example
after visiting a detention facility) to the public, but only to the authorities concerned. They
also do not testify before the courts.
7.1.3 Impartiality
Humanitarian action must be carried out on the basis of need alone, giving priority to the
most urgent cases of distress and making no distinctions on the basis of nationality, race,
gender, religious belief, class or political opinions. It endeavours only to relieve suffering,
giving priority to the most urgent cases of distress.
7.1.4 Independence
Humanitarian action must be autonomous from the political, economic, military or other
objectives that any actor may hold with regard to areas where humanitarian action is being
implemented.
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Fundamental Humanitarian Principles in IHL
7.2 Challenges faced by humanitarian assistance
International humanitarian law (IHL) provides legal sanctity to the work of humanitarian
agencies in supporting governments in fulfilling their obligations to protect civilians when
they are unable to do it. However, humanitarian agencies face lot of challenges in
achieving access to provide humanitarian assistance because of many reasons. Restrictions
on access have led to thousands of deaths from malnutrition and disease, and these
numbers are rising.
For example, many state governments keep humanitarian agencies at bay doubting their
independence, impartiality, and neutrality. They use control over humanitarian access as
a strategy to weaken the rebel-controlled territories which include regulation of movement,
blockades, penalization and arrests of relief staff, and various bureaucratic strategies for
restricting access, like preventing aid workers from entering the country.
The rebel-controlled territories also experience restrictions on access to humanitarian
assistance. Various rebel and militia groups have been responsible for obstructing relief
efforts in their territories. The tactics range from harassing checkpoints to outright denial
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of access. In some cases, aid organizations themselves have been targeted with killing,
attacks on relief convoys, looting of supplies, and even the killing of relief personnel.
7.3 Humanitarian assistance under IHL
IHL recognizes that victims of an armed conflict are entitled to receive supplies
indispensable to their survival. While the primary responsibility of providing medical and
other humanitarian assistance to persons in need lies with the authorities which control
the territory, and such authorities– whether State or non-State– are often incapable of
fulfilling their duties. IHL provides an alternative by specifying a role for impartial
humanitarian organizations and by granting special rights to the ICRC. IHL provides for
humanitarian assistance on the basis of the nature of situation and classification of
conflicts. The provisions for humanitarian assistance during International Armed Conflict
(IAC) are much more elaborate than in case of Non-International Armed Conflicts
(NIAC).
7.3.1 International Armed Conflicts
The basic principle of humanitarian assistance under IHL provides that when a State is
unable to provide protection to victims of armed conflicts, it shall request or shall accept
the offer of services of a humanitarian and impartial organization, such as the ICRC
(includes also other organizations which are humanitarian and impartial).166 Further, each
contracting party to the Geneva Convention shall allow the free passage of humanitarian
aid consignments which include, medical goods, foodstuffs, clothing and special health
care goods like tonics for children and expectant mothers, and maternity cases.167 The relief
operations must be carried out for the benefit of the entire civilian population if there is a
general shortage of indispensable supplies, even though a priority shall be given to persons
166
Art. 10, GC I-III and Art.11, GC IV.
167
Art. 23, GC IV
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accorded privileged treatment or special protection. It is stipulated that the consent of all
parties concerned – including that of the State receiving the aid- is necessary for such
assistance.168 The personnel involved in a relief operation shall be protected and
respected.169 The State shall encourage the work of organizations engaged in reuniting
dispersed families, “provided they are acceptable to it and conform to its security
regulations”.170
With regard to the relief assistance, the concerned States are given the right to inspect the
contents and verify the destination of the relief supplies, as well as to refuse the passage of
goods if they have well founded reasons to believe that they will not be distributed to the
victims, but rather contribute to the military effort.171
In the case of occupied territories, the occupying power has to make sure that the
population receives adequate medical and food supplies. If this proves impossible, the said
power is obliged to permit relief operations by third States or by an impartial organization
such as the ICRC and to facilitate such operations; this is subject to temporary and
exceptional measures for urgent reasons of security.172
7.3.2 Non-International Armed Conflicts
In the case of NIAC, Article 3, common to all Geneva Conventions, provides for
humanitarian organizations to offer services to the parties to the conflict. In the case of
areas controlled by Non- State Armed Groups, the humanitarian aid shall be undertaken
subject to the consent of the High Contracting Party concerned. IHL further provides that
if the civilian population is suffering from undue hardship owing to lack of the supplies
168
Art. 70, AP I
169
Art. 71, AP I
170
Art. 26, GC IV
171
Art. 23, GC IV
172
Art. 59, GC IV and Arts. 63, 69-71*missing
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essential for its survival, such as food-stuffs and medical supplies, relief actions for the
civilian population, which are of an exclusively humanitarian and impartial nature and
which are conducted without any adverse distinction, shall be undertaken subject to the
consent of the State concerned.173
7.3.3 Situations short of armed conflicts
In cases of situations of internal tensions and disturbances, where IHL does not apply,
IHRL offers assistance when the state is unwilling or unable to offer assistance. For
example, the International Covenant on Economic, Social and Cultural Rights of 1966
recognizes the right of everyone to an adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions and in order to give effect to this rights the state parties
may take appropriate steps to ensure the realization of this right, recognizing to this effect
the essential importance of international co-operation based on free consent.
7.4 Relief supplies for humanitarian assistance
The relief supplies have to be distributed without any adverse distinction, however, the
priority must be given to persons accorded privileged treatment or special protection such
as children, expectant mothers, maternity cases and nursing mothers.174 The relief action
is conceived as having to remain exceptional, the first responsibility for the supplying to
the population being put on the Party which controls the territory.175
173
Art. 18, para.2, AP II
174
Art. 70, AP I
175
Art. 60, GC IV; Art. 69, AP I
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The relief supplies may be composed of food and medical supplies,176 clothing,177 bedding,
means of shelter,178 objects necessary for religious worship,179 books and objects necessary
for recreation, study, sports and games,180 and other objects indispensable for the survival
of the civilian population like fuel or charcoal in cold regions, boats in islands, etc.181 The
relief supplies may be given either collectively or individually.182
Further, IHL also provides guarantees for the transport and distribution of relief supplies
through the prohibition of diversion,183 free passage184 and transit and transport kept free
of charge, taxes or customs duties.185 However, this is subject to the strict control of the
conditions of distribution including the right to search the relief consignment.
THE CONCEPT OF IMPARTIAL HUMANITARIAN ORGANIZATIONS AND

THE ICRC
7.5 Impartial humanitarian organizations
IHL makes express reference to “impartial humanitarian organizations, such as the
ICRC” in the Conventions and Protocols.186 The provisions imply that the ICRC and the
Red Cross and Red Crescent Societies are not the only organizations authorized to carry
out humanitarian assistance. Other impartial non-governmental humanitarian
organizations (NGOs) may be authorized to do so, as long as they respect the principles
of humanity and impartiality as defined above. The other impartial humanitarian NGOs
will have to be admitted as such by the authorities – whether State or non-State –
176
Arts. 23, 59 and 108, GC IV; Arts. 69 and 70, AP II, Art. 18(2)*missing
177
Arts. 23, 59 and 108, GC IV; Arts. 69 and 70, AP I
178
Arts. 69 and 70, AP I
179
Arts. 23, 58, GC IV
180
Arts. 94 and 108, GC IV
181
Arts. 69 and 70, AP I
182
*Missing
183
Art. 60, GC IV; Art.70(3), AP I
184
Art. 60, GC IV; Art.70(3)
185
AP I Art. 61, GC IV
186
Art. 3, GC I-IV; Art. 9, GC I-III; Art. 10, GC IV; Arts. 5(3)-(4) and 16(1), Art. 18(1), AP II
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controlling the territory on which they want to carry out their activities, while the ICRC
and the other components of the Movement are, by definition, impartial humanitarian
organizations and do not need to be admitted as such.
Humanitarian relief personnel, equipment and supplies of humanitarian organizations are
protected against attacks. According to IHL, parties to a conflict must allow and facilitate
rapid and unimpeded passage of humanitarian relief for civilians in need, as long as the
assistance is impartial in character, and conducted without any adverse distinction. The
parties to a conflict must also ensure the freedom of movement of authorized humanitarian
relief personnel essential to the exercise of their functions. Only in the case of imperative
military necessity may their movements be temporarily restricted.
7.6 Right of initiative
In IAC and NIAC, the ICRC and other admitted impartial humanitarian organizations
have a right of initiative, provided for in the Geneva Conventions and Additional
Protocols.187 This right of initiative enables the organization to offer its services to the
parties, with a view to assisting the victims. The offer of assistance (relief or otherwise)
does not constitute interference in the internal affairs of a State, since it is provided for in
the Geneva Conventions and Additional Protocols, which have been negotiated, drafted,
agreed upon and signed by States.
7.7 The International Committee of The Red Cross (ICRC)
The ICRC was founded in 1863 by five Swiss citizens including a businessman Henry
Dunant, who wrote the book the Memory of Solferino, and in which he proposed such an
organization to help victims of armed conflicts. The ICRC is the founding member of the
187
GC I, II, III Articles 3 and 10; Art. 11, GC IV; Arts. 5(4) and 17(1), AP I; Art. 18, AP II
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International Red Cross and Red Crescent Movement, which includes the national
societies and the International Red Cross Federation.
Headquartered in Geneva, the ICRC's sole objective has been to ensure protection and
assistance for victims of armed conflict and strife. It does so through its direct action
around the world, as well as by encouraging the development of IHL and promoting
respect for it by governments and all weapon bearers. Its story is about the development
of humanitarian action, the Geneva Conventions and the Red Cross and Red Crescent
Movement.
The ICRC has a special legal status: under Swiss law, it is an ordinary society composed
entirely of Swiss citizens (the Governing Body); yet, this private society has been granted
certain powers by the international community and, as a result, it resembles an
international organization. The ICRC has a hybrid status: it is neither a NGO, nor an
intergovernmental organization (such as the United Nations). One may say that the ICRC
has the legal structure and composition of a Swiss organization and the mandate of an
international organization.
The ICRC's mandate has two sources: the Geneva Conventions, which task the ICRC
with visiting prisoners, organizing relief operations, re-uniting separated families and
similar humanitarian activities during armed conflicts; and the ICRC's Statutes, which
encourage it to undertake similar work in situations of internal violence, where the Geneva
Conventions do not apply. Pursuant to Article 4 of its Statute:
1. The role of the ICRC shall be in particular:
A. to maintain and disseminate the Fundamental Principles of the Movement;
B. to recognize any newly established or reconstituted National Society …;
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C. to undertake the tasks incumbent upon it under the Geneva Conventions, to
work for the faithful application of IHL applicable in armed conflicts and to
take cognizance of any complaints based on alleged breaches of that law;
D. to endeavour at all times to ensure the protection of and assistance to military
and civilian victims of (armed conflict);
E. to ensure the operation of the Central Tracing Agency;
F. to contribute… to the training of medical personnel and the preparation of
medical equipment, in cooperation with the National Societies, the military
and civilian medical services and other competent authorities;
G. to work for the understanding and dissemination of knowledge of IHL and to
prepare any development thereof;
H. to carry out mandates entrusted to it by the International Conference.
2. The ICRC may take any humanitarian initiative which comes within its role as a
specifically neutral and independent institution and intermediary and may consider
any question requiring examination by such an institution.”
7.8 The Emblems of The Red Cross and Red Crescent Movement
The red cross and red crescent emblems are universally recognized symbols of assistance
for the victims of armed conflicts and disasters. In use since the nineteenth century, these
emblems unfortunately do not always enjoy the respect to which they are entitled as
visible signs of the strict neutrality of humanitarian work. Moreover, certain States find it
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difficult to identify with one or the other particularly because of their apparent religious
connotation.
To resolve these issues, a diplomatic conference was held in December 2005 for the
adoption of a third protocol additional to the Conventions (AP III). AP III establishes an
additional emblem, commonly referred to as the ’red crystal’, alongside the red cross and
red crescent. AP III has entered into force on 14 January 2007.
7.9 Case study
During a war between state A and B, the civilian population of the region Q in State A,
which is reputed to support a rebellion, is enduring starvation because of the bad
climactic conditions over the last three years. The State A authorities authorize foreign
humanitarian organisations which offer their services to open camps for the distribution
of food, as well as medical and nutritional care.
However, State A build barricades to inspect the contents and verify the destination of
the relief supplies, as well as to refused the passage of goods if they have doubt to believe
that they will contribute to the military effort.
Questions: As director of operations of a humanitarian NGO delivering food in the
camps, you are requested to react those events and take a decision on the appropriate
course of action.
Answer: See Article 23 of GC IV
1. Barber Rebecca, “Facilitating Humanitarian Assistance in International
Humanitarian and Human Rights Law”, 91 IRRC 371-399. (June 2009).
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2. Moore Jonathan (ed.), Hard Choices: Moral Dilemmas in Humanitarian
Intervention, (New York, Rownan and Littlefield, 1998), pp. 322.
3. Rottensteiner Christa, “The Denial of Humanitarian Assistance as a Crime under
International Law”, IRRC (No. 835, September 1999), 555-582.
1. Macalister-Smith Peter, International Humanitarian Assistance, Disaster Relief
Actions in International Law and Organization (Dordrecht/Geneva, M. Nijhoff
/Henry-Dunant Institute, 1985), pp. 244.
2. Ryniker Anne, “The ICRC’s Position on ‘Humanitarian Intervention’”, IRRC
(No. 842, June 2001), 527-532.
5. How Does Law Protect in War, Vol. 1, Outline of International Humanitarian
Law Possible Teaching Outlines,
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CHAPTER 8
REPRESSION OF SERIOUS VIOLATIONS OF IHL & GRAVE BREACHES

UNDER IHL
Traditionally, international law governs the rules of conduct for States and other
international organizations. Even if there are violations of international law, it is up to the
State concerned to take penal action against individuals who violate them – indeed,
ultimately only human beings can violate or respect rules. There is, however, the growing
branch of international criminal law (ICL), which consists of rules of international law
specifically criminalizing certain individual behaviour and obliging States to criminally
repress such behaviour. International humanitarian law (IHL) was one of the first
branches of international law to contain rules of ICL. However, It would be wrong and
dangerous to see IHL solely from the perspective of criminal law. IHL must be applied
above all during conflicts – by the belligerents, third States and humanitarian
organizations – to protect the victims.
8.1 Definition of Grave Breaches
Grave breach means a grave breach of the Geneva Conventions (GC) or Additional
Protocol (AP). It is a serious violation of the GC or AP I which will be subject to greater
international sanctions and repression. The Grave Breaches of GC’s and AP I are as
follows.
8.1.1 Grave Breaches specified in all the Geneva Conventions
• Art. 50, GC I; Art. 51, GC II; Art. 130, GC III (except d); and Art. 147, GC IV
indicate following conducts as grave breaches:
(a) Willful killing of a protected person;
(b) Torture or inhuman treatment, including biological experiments;
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(c) Willfully causing great suffering or serious injury to body or health of a
protected person; and
(d) Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly (this
provision is not included in Art. 130 Third 1949 Geneva Convention).
Art. 130 of GC III gives the following additional grave breaches in cases of prisoners of
War:
(a) Compelling a prisoner of war to serve in the forces of the hostile
Power; and
(b) Willfully depriving a prisoner of war of the rights of fair and regular
trial prescribed in the Convention
Art. 147 of GC IV provides additional provisions as grave breaches in case of civilians
thus:
(a) Compelling a protected person to serve in the forces of the hostile
Power;
(b) Willfully depriving a protected person of the rights of fair and regular
trial prescribed in the Convention;
(c) Unlawful deportation or transfer or unlawful confinement of a
protected person; and
(d) Taking hostages.
8.1.2 Grave breaches specified in Additional Protocol of 1977
Article 11 (4) AP I provide that,
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Any willful act or omission which seriously endangers the physical or mental health or
integrity of any person who is in the power of a Party other than the one on which he
depends and which either violates any of the prohibitions in paragraphs 1 and 2 or fails to
comply with the requirements of paragraph 3 shall be a grave breach of this Protocol.
Article 85 (2) provides that,
Acts described as grave breaches in the Conventions are grave breaches of this Protocol if
committed against persons in the power of an adverse Party protected by Articles 44, 45 and
73 of this Protocol, or against the wounded, sick and shipwrecked of the adverse Party who
are protected by this Protocol, or against those medical or religious personnel, medical units
or medical transports which are under the control of the adverse Party and are protected by
this Protocol.
Article 85 (3) further provides that,
• In addition to the grave breaches defined in Article 11, the following acts shall be
regarded as grave breaches of this Protocol when committed willfully, in violation
of the relevant provisions of this Protocol, and causing death or serious injury to
body or health;
• Making the civilian population or individual civilians the object of attack;
• Launching an indiscriminate attack affecting the civilian population or civilian
objects in the knowledge that such attack will cause excessive loss of life, injury to
civilians or damage to civilian objects;
• Launching an attack against works or installations containing dangerous forces in
the knowledge that such attack will cause excessive loss of life, injury to civilians
or damage to civilian objects;
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• Making non-defended localities and demilitarized zones the object of attack;
• making a person the object of an attack in the knowledge that he is hors de
combat;
• The perfidious use of the distinctive emblem of the Red Cross, Red Crescent or
other protective signs.
Article 85 (4) provides thus:
In addition to the grave breaches defined in the preceding paragraphs and the
Conventions, the following shall be regarded as grave breaches when committed willfully
and in violation of the Conventions or the Protocol:
• 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;
• Unjustifiable delay in the repatriation of prisoners of war or civilians;
• Practices of apartheid and other inhuman and degrading practices involving
outrages upon personal dignity, based on racial discrimination;
• 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 of extensive destruction thereof, and when such historic monuments,
works of art and places of worship are not located in the immediate proximity of
military objectives or used by the adverse party in support of its military effort; and
• Depriving a person protected by the Conventions or referred to in paragraph 2 of
this Article of the rights of fair and regular trial.
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8.2 Grave Breaches and Non-International Armed Conflicts
According to the Trial Chamber of the International Criminal Tribunal for Yugoslavia
(ICTY) in the 1995 Tadic Case,188 the existence of an international armed conflict (IAC)
was not a requirement for the exercise of jurisdiction of grave breaches enlisted in Article
2 of the ICTY Statute. The Trial Chamber held that, despite its references to grave breaches
of the Geneva Conventions, Article 229 of the Statute enabled the Tribunal to treat those
provisions as declaratory of customary law, and to try persons committing the acts listed
in the grave breaches provisions in internal armed conflict. However, the Appeals
Chamber of the ICTY reversed these findings. The Appeals Chamber held that there were
two burdens of proof for Article 2 of the ICTY Statute to apply. First, a requirement that
the armed conflict be international at all relevant times, and secondly, that the victims of
the alleged grave breach fell within the definition of protected persons as defined by the
Geneva Conventions. Hence Grave Breaches apply to violations only during IAC.
8.3 Repression mechanisms for violations of Grave Breaches
The repression of violations of Grave Breaches is possible in the following ways:
8.3.1 Prosecution by States
Under IHL the responsibility to take action against grave breaches fall on the States
concerned. IHL requires states to enact legislation necessary to prosecute and punish
persons guilty of grave breaches of the GC & AP I (GCI- 49/50, GCIII-129, GCIV- 146;
AP- I 80).
188
Prosecutor v. Tadic, Decision of the Defence Motion on Jurisdiction, Case No. I T-94-1-T, T. Ch.,
10 Aug. 1995
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8.3.2 Aut dedere aut judicare principle
The principle of aut dedere aut judicare (Latin for "either extradite or prosecute") refers to
the legal obligation of states under the public international law to either prosecute or
extradite a person who commits serious international crimes. It also means that the states
are under an obligation to prosecute a perpetrator, where no other state has requested
extradition (GCI- 49/50, GCIII-129, GCIV- 146; AP- I 88).
8.3.3 Universal Jurisdiction
State law normally applies only within the territory of the state, while IHL requires the
state to seek out and punish any person who has committed a grave breach, irrespective of
nationality or place where the offence was committed. The principle of universal
jurisdiction is a legal principle allowing or requiring a state to bring criminal proceedings
in respect of certain crimes irrespective of the location of the crime and the nationality of
the perpetrator or the victim. The rationale behind it is the notion that certain crimes are
so harmful to international interests that states are entitled– and even obliged– to bring
proceedings against the perpetrator, regardless of the location of the crime and the
nationality of the perpetrator or the victim. Universal jurisdiction allows for the trial of
international crimes committed by anybody, anywhere in the world.
8.4 International Criminal Law and the Complementarity Principle
The emergence of ICL in the 1990’s gave IHL a new forum to repress the violation of
provisions of IHL, especially the grave breaches. The Rome Statute of the International
Criminal Court at The Hague gives primacy to the national jurisdiction unless it is unable
or unwilling to investigate and prosecute. This principle is known as the Complementarity
Principle.
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8.5 Individual Criminal Responsibility
At the national level, states have machinery for implementation of criminal law in its
territory. At the international level, the community consists of a great number of individual
states and international organizations, who are collectively responsible for
implementation and enforcement of IHL. This collective responsibility has culminated to
the concept of International Criminal Responsibility, which may be further divided into
international criminal responsibility of the states and individual criminal responsibility.
International Criminal Responsibility: Two Aspects
As mentioned above besides State responsibility for violations of international law,
individuals may be held criminally responsible for international crimes (i.e. war crimes,
crimes against humanity, and genocide). Each member of the armed forces is directly
responsible for breaches he or she commits, and may be held individually responsible
before a criminal court for violations of the laws of war. The principle of individual
criminal responsibility for war crimes can be dated back to the Lieber Code and is a long-
standing rule of customary international law. Not only is it possible to hold accountable
for individuals who actually commit a war crime, but different forms of individual criminal
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responsibility allow persons who attempt, assist, facilitate, aid, abet, plan or instigate the
commission of a war crime to face accountability for their actions. Finally, the law of
armed conflict assigns responsibility to military commanders who order the subordinates
to violate IHL or who fail to prevent or repress such violations.
8.6 Evolution of International Criminal Law and International Criminal Court (ICC)
8.6.1 What Is International Criminal Law?
The ICL is a body of international rules designed both to proscribe international crimes
and to impose upon states the obligation to prosecute and to punish at least some of those
crimes. It is governed by two set of laws, international law and criminal law.
• International law typically governs the rights and responsibilities of States, whereas
criminal law, conversely, is concerned with prohibitions addressed to individuals,
violations of which are subject to penal sanctions by a State. Hence, the
development of a body of international criminal law that imposes accountabilities
on an individual and punishes any violation through an international mechanism
is relatively recent.
With its focus on inter-state conflict, the main area of concern of international criminal
law is the protection of individuals from the wide-scale atrocities. As held in the Tadić
Case: (Appeal Chamber, ICTY, para 97.)
• The International Criminal Law is premised on the fundamental concept of
complementarity, i.e. the primacy of prosecution under the international criminal
law is always with states and the international courts step in only when the states
are not willing or unable to prosecute such violations. International criminal courts
may not have the jurisdiction to punish everyone who is involved in international
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criminal law violations, hence only those crimes which have ‘sufficient gravity’ will
be dealt with by an international criminal court. It is designed essentially for the
enforcement by the national courts.
8.6.2 International Criminal Law and IHL
IHL is a body of offences, which are meant for the protection of victims of armed conflicts.
The application of IHL depends on the classification of armed conflicts. For this reason,
armed conflicts are classified as IAC, non-international armed conflicts (NIAC), and
internal disturbances and tensions. In IAC all provisions of IHL apply, in cases of NIAC
only common Article 3 of Geneva Conventions and Additional Protocols apply, and in
others IHL doesn’t applies at all. ICL and IHL share common roots especially when
serious violations of IHL form the basis of offences of war crimes under ICL. On the basis
of classification of armed conflicts, the war crimes in ICL are also classified.
8.6.3 International Criminal Law and International Human Rights Law
ICL especially genocide and crimes against humanity as ICL crimes owe their origin from
human rights law. The modern law of human rights and a considerable part of ICL share
a common base. ICL has developed in this context to respond to egregious violations in
the absence of effective alternate mechanisms for enforcing the most basic humanitarian
standards. The ad hoc tribunals had widely used instruments and practices developed in
human rights law in its jurisprudence. Also, in international criminal procedure many of
the due process protections accorded to defendants originate in human rights law.
However, both are not the same, for example, human rights obligations are imposed on
States, while ICL deals primarily with individual criminal responsibility.
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8.7 Evolution of International Criminal Law
One of the earliest international trials was that of Peter von Hagenbach in 1474 in
Breisach, Germany for the atrocities he unleashed in the occupied land. Since then till
the First World War, there were many attempts to prosecute perpetrators for the
commission of international crimes, especially the ones which involved violation of laws
of war. They are stated in chronological order below;
• Gustave Moynier, the co-founder of Red Cross Movement, in 1872 proposed the
creation of an international arbitration court to penalize violations of IHL, after
the Franco-Prussian War in 1870-71.
• Treaty of Versailles after the First World War, made arrangements to prosecute
violations of war crimes, but there was no effective prosecution.
o Articles 227- The Kaiser was to publicly arraigned for “supreme offence
against international morality and sanctity of treaties”
o Articles 228 and 229 provided for prosecution of Germans accused of War
Crimes before allied courts.
• The Treaty of Sèvres after the Armenian Genocide has the Article 230, which
required that the Ottoman Empire "hand over to the Allied Powers the persons
whose surrender may be required by the latter as being responsible for the
massacres committed during the continuance of the state of war on territory which
formed part of the Ottoman Empire on August 1, 1914”
• The 1929 Convention for the Amelioration of the Condition of the Wounded and
Sick in Armies in the Field had somewhat weak provision in its Article 30 for
repression of its violations
• The League of Nations draft Convention provided for the establishment of
International Criminal Court, 1937, but Second World War intervened.
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• Convention for the Prevention and Punishment of Terrorism, 1937 and Genocide
Convention 1948 expressly criminalized such acts” whether committed in time of
peace or in time of war “and established universal jurisdiction.
• Geneva Conventions 1949 provided for universal jurisdiction for breaches (GC,
Art. 49), Obligation to try grave breaches (GC, Art. 49) and Cooperation in
Inquiries (GC, Art. 52) (also AP I Arts. 88-90)
• Nuremberg Trials (International Military Tribunal) and Tokyo Trials
(International Military Tribunal Far East) after the Second World War put Nazi
and Japanese war criminals for trial. This is considered as the beginning of the
modern international criminal trials.
• International Criminal Tribunals for Yugoslavia & Rwanda (ICTY/ICTR)
1993/4
• Domestic international criminal courts (Cambodia, B&H, SL etc.)
• International Criminal Court (ICC) (Rome Statute of 1998).
Repression Mechanisms in Modern International Criminal Law
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8.8 International Criminal Court at the Hague (ICC)
The ICC was established on 1 July 2002, at The Hague. The treaty which established ICC
is known as Rome Statute, which was signed by states at the Rome in 1998 which is the
ICC's foundational and governing document. Currently there are 123 states which are
party to the Rome Statute and therefore members of the ICC. The ICC has the jurisdiction
to prosecute individuals for the international crimes of genocide, crimes against humanity,
war crimes, and crime of aggression.
ICC is created with the consent of those who will themselves be subject to its jurisdiction.
The Rome Statute makes a distinction between jurisdiction and admissibility. In order to
prosecute a case before ICC two conditions have to be met with,
• Firstly, the court should have jurisdiction; and
• Secondly, the court should have admissibility
The jurisdiction requirement mandates that the ICC will prosecute a person only if,
• There is a commission of the four crimes mentioned under the ICC Statute, i.e.
genocide, war crimes, crimes against humanity and crime of aggression (subject
matter jurisdiction)
• The crime should have been committed after the establishment of the ICC, i.e.
after 1 July 2002 (temporal jurisdiction)
• For an individual to be prosecuted by the Court either territorial jurisdiction or
personal jurisdiction must exist. Therefore, an individual can only be prosecuted if
they have either (1) committed a crime within the territorial jurisdiction of the
Court or (2) committed a crime while a national of a state, that is within the
territorial jurisdiction of the Court.
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The admissibility requirement concerns about whether matters over which the Court
properly has jurisdiction should be litigated before it. As per the admissibility clause,
• The Court is empowered to refuse to hear a case that ‘is not of sufficient gravity’
even if it has jurisdiction over the crime
• The Court is required to rule a case inadmissible when it is appropriately dealt
with by a national justice system. This is known as ‘complementarity principle’.
However, the court can opt to take up the case if the state concerned is unwilling
or unable genuinely to investigate or prosecute
• The right to decide whether a case is admissible or not, is within the privilege of
the court
8.9 CRIMES UNDER THE ICC
8.9.1 Genocide
Article 6 defines the crime of genocide as "acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group". There are five such acts
which constitute crimes of genocide under Article 6.
• Killing members of a group
• Causing serious bodily or mental harm to members of the group
• Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction
• Imposing measures intended to prevent births within the group
• Forcibly transferring children of the group to another group
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8.9.2 Crimes against Humanity
Article 7 defines crimes against humanity as acts "committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the attack".
The individual crimes listed under the crime are:
• Murder
• Extermination
• Enslavement
• Deportation or forcible transfer of population
• Imprisonment or other severe deprivation of physical liberty
• Torture
• Rape
• Sexual slavery
• Enforced prostitution
• Forced pregnancy
• Enforced sterilization
• Sexual violence
• Persecution
• Enforced disappearance of persons
• Apartheid
• Other inhumane acts
8.9.3 War Crimes
Article 8 defines war crimes depending on whether an armed conflict is either international
or non-international armed conflict. In total there are 74 war crimes listed in Article 8. The
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war crimes which are grave breaches of IHL are listed below. Please note that they form
only 11 out of the total 74 crimes listed under the war crimes
There are 11 crimes which constitute grave breaches of the Geneva Conventions and
which are applicable only to international armed conflicts:
• Wilful killing
• Torture
• Inhumane treatment
• Biological experiments
• Wilfully causing great suffering
• Destruction and appropriation of property
• Compelling service in hostile forces
• Denying a fair trial
• Unlawful deportation and transfer
• Unlawful confinement
• Taking hostages
8.9.4 Crime of aggression
The Crime of Aggression is the last crime in the ICC which has come into force. This
crime was kept pending for lack of consensus among the state parties on the definition of
the crime. The amendments to the definition were adopted at the first review conference
of the ICC in Kampala, Uganda, in June 2010, and the Assembly of States Parties has
voted in favour of allowing the Court to exercise jurisdiction.
The Statute defines the crime of aggression as "the planning, preparation, initiation or
execution, by a person in a position effectively to exercise control over or to direct the
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political or military action of a State, of an act of aggression which, by its character, gravity
and scale, constitutes a manifest violation of the Charter of the United Nations”. It further
defines an ’act of aggression’ as "the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations." The article also contains a list of
seven acts of aggression, which are identical to those in United Nations General Assembly
Resolution 3314 of 1974 and include the following acts when committed by one state
against another state:
• Invasion or attack by armed forces against the territory
• the military occupation of territory
• Annexation of territory
• Bombardment against the territory
• Use of any weapons against the territory
• Blockade of ports or coasts
• Attack on the land, sea, or air forces or marine and air fleets
• The use of armed forces which are within the territory of another state by
agreement, but in contravention of the conditions of the agreement
• Allowing territory to be used by another state to perpetrate an act of aggression
against a third state
• Sending armed bands, groups, irregulars, or mercenaries to carry out acts of
armed force
8.10 Case Study
A group of soldiers involved in the UN peace-keeping mission in State A are targeted in
the capital city by the armed forces of State A and obliged to withdraw. The armed forces
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of State A also bombard all major buildings of the city supposed to shelter members of the
rebel groups, including their barracks, the train station, two hospitals, the post office, one
school and the museum of natural history.
Questions:
1. Whether the attacks amount to Grave Breach under IHL?
2. Indicate if those violations could be prosecuted before the International Criminal
Court (ICC) as war crimes, crimes against humanity or genocide.
Answer:
1. Yes, the attacks amount to Grave Breach under IHL. See Art. 50, GC I; Art. 51,
GC II; Art. 130, GC III; Arts. 85 and 147, GC IV
2. War Crimes under Art. 8(2)(iii), (iv) and (v)
8.11 Required Reading
1. Fleck Dieter, “Shortcomings of the Grave Breaches Regime”, 7 Journal of
International Criminal Justice 833-854(2009).
2. Bonafe Beatrice I, The Relationship Between State and Individual Responsibility
for International Crimes (Leiden, M. Nijhoff, 2009), p. 281.
8.12 Further Reading
1. Cassese Antonio, International Criminal Law), p. 472.
2. Kress Claus, “War Crimes Committed in Non-International Armed Conflict and
the Emerging System of International Criminal Justice”, 30 IYHR 103-177
(2000).
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4. How Does Law Protect in War, Outline of International Humanitarian Law
Possible Teaching Outlines I, ICRC
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UNDERSTANDING INTERNATIONAL HUMANITARIAN LAW

1.1 What is International Humanitarian Law?

1.2 IHL as a branch of International Law

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relations between or among members of the international community- States and

international organizations created by States. International law retains a structure which

upon by concerned States, wherein municipal law is made by the governments of

International Law and Jus Cogens.2

IHL is also contained in agreements between States – treaties or conventions –, customary

International law is therefore applicable as a complement to IHL. The rules of

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and international law is symbiotic and inevitable to exclude each other.

1.3 Difference between jus ad bellum and jus in bello

The international legal framework governing armed conflicts can be classified as

collective self-defence under Article 51 of the United Nations Charter.

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therefore, to be respected independently of any argument of jus as bellum and has to be

jus in bello, which means law regulating the resort to force.

1.4 Similarity of Human Rights provisions and IHL

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1.5 Differences between Human Rights and IHL

International Covenant on Civil and Political Rights.

situation of internal armed conflict.

1.6 Emergence of International Criminal Law and interrelationships

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followed in International criminal law.

Subsequently, in 1993, the UN Security Council, by Resolution 827, set up an

Resolution 955, set up an International Criminal Tribunal in Arusha, Tanzania, to try

In addition to these international criminal tribunals, there are a number of

‘internationalized’, ‘mixed’ or ‘hybrid’ tribunals. These are tribunals established to

Government of Sierra Leone to prosecute international and national crimes committed in

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conflicts have to be classified as international armed conflicts (IAC), non-international

individual criminal responsibility.

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1.7 History and Origins

modern humanitarian law.

often difficult as it fully depended upon the willingness of the belligerents.

1.8 Evolution of modern IHL and its definition

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Un Souvenir de Solferino (A Memory of Solferino) in 1862 on the human sufferings he had

immigrated to the United States.

certain inviolable rules such as the prohibitions of perfidy or torture.

1.9 Law of the Hague and the Law of Geneva

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1.10 Sources of IHL

38 of International Court of Justice Statute.

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exchange of prisoners of war. The systematic codification and progressive development of

of shortcomings and new development in military technologies and practices. Probably