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OUTLINE SECTION 1

Aims, Characteristics, Principles, History and Sources of

International Humanitarian Law

Course, 9/10/2024
1. Historical background – some references

War is not new

There have always been efforts to limit the violence in armed conflicts
There are numerous reasons for armed conflicts: religion, ethnic conflict, fight over
land

Certain principles/rules for combat (e.g. “spare the elderly”) can be found in various
religious texts (e.g. in the bible), because of the idea, that human dignity remains
intact even in armed conflict

We found limitations to war in all great civilizations:

- Hamourabi Code
- Bible
- Quran
- Indian Mahabharata
- Japanese Busido
- Chinese Confucius

These rules aim to contain and protect those who do not necessarily take part in
military events, in other words those who are considered vulnerable. In addition,
these ancient rules (on which IHL is based) aim to regulate the use of force (e.g. ban
on poisoning wells, ban on attacking children or young people, etc).

There is a link between the development of the rules applicable to war and the
development of public international law.

Development of IHL correlates with the development of the international society

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(and how states were organised)

Treaty of Westfalia (1648) – first time that a state is mentioned as subject of
international law with sovereignty
An attribute of sovereignty is the fact that you can wage war (back then it was legal
to wage war)

Two main questions

- When is war just?
- How should war be waged?

Ius ad bellum (the law towards the war)

Ius in bello (the law in the war)
Several authors have addressed these issues. The notion was of “just war” was
developed also.
- 13 century: Saint Thomas d’acquin

- 16th century: Francisco di Vi oria – De Jure belli

- 16-17th centuries: Franciso Suarez and Hugo Gro us (De Jure Belli ac pacis) –
1625; Hobbes leviathan

- 18th century De Va el Le droit des gens – wri en in french

- 18th century : Rousseau Social contract

This list is far from being exhaustive but it is obvious that such philosophical
reflections had an influence on how war should be carried out

2. Characteristics of IHL

1) Division between jus in bello and jus ad bellum

The rules apply, no matter if the parties are good or bad, IHL will apply to their
behaviour
2) Principle of necessity: do no more than is necessary. You can do everything
that is necessary to win the war but nothing more than what is necessary.
3) Distinction: only target what has a value in terms of military potential of your
enemy
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Distinguish between the one participating in the hostilities and civilians

4) Treat civilians/wounded/sick with humanity (civilians, wounded soldiers)

When did war become illegal?

Before 1928, war was not banned.

First time mentioned in Briand-Kellog pact of France and US 1928

(League of nations pact renunciation to war)

IAC = international armed conflict

NIAC = non-international armed conflict (within national states)

The 1945 United Nations Charter finally gave concrete form to this prohibition by
codifying it in Article 2§4.

Art. 2 par 4 Members of the Organization shall refrain in their international

relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.

It should be noted, however, that although war is prohibited by the United Nations
Charter, armed conflicts continue to exist.

There hasn't been a day without conflict since the Second World War.

There is also an evolution in armed conflitcs.

Firstly, today we are seeing a proliferation of so-called "destructured" conflicts, in

other words conflicts in which the state has collapsed and the authorities have lost
control of their territory. In such cases, there is often a mix between the armed
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conflict and criminal activities. Often, civilians will use weapons to defend
themselves. The distinction between combatant and civilian is blurred

Examples: Sierra Leone, Liberia, Somalia, Ituri.

Also, the number of ethnic conflicts, conflicts in which the population itself is the
object of the conflict, is increasing considerably. The expulsion of another ethnies or
even its extermination becomes the objective of the war

E.g. Bosnia, Rwanda, Sudan….

In these two types of conflicts, civilians have become the main victims.

Also called law of war, law of armed conflicts.

Secondly, there have also been changes in the means of combat. There is often a
huge disparity between the weapons used by each group. We are also seeing the
introduction of increasingly sophisticated methods, such as laser weapons,
unmanned drones and cyber attacks. Where does the application of IHL end or,
more simply, where does it begin?

War is in itself so dramatic that we would not want it to become murderous anarchy,
so IHL responds by trying to set limits to war. So we need to develop a law that
seeks to set limits on violence, but that must satisfy military requirements, and must
also allow the necessary military action to take place.

This is where IHL comes into play. On the one hand, the conviction that war has
limits for humanitarian reason.

On the other hand, the conviction that war has to be carried in a way that is as
effective as possible. The least time possible with the least resources necessary.

IHL is the result of the meeting of the humanitarian and military necessity. The
balance achieved for each of the rules of humanitarian law cannot therefore be
broken a posteriori.
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For example, in the case of torture: this is prohibited in all circumstances. It would
not be possible to justify torture on the grounds of military necessity, as this would
upset the balance of the rule that has been negotiated.

Military necessity can also be another obstacle to our actions. If it is not necessary,
even if it is not forbidden, humanitarian law does not allow it.

It is an eminently pragmatic law, applied on the battlefield, the main aim being to
protect those who are not or are no longer taking part in hostilities and to limit the
excessive use of force.

But to be effective, it needs to be believed in and adhered to by the weapons’

carriers.

To achieve this, IHL includes several rules that are not fully precise or involve a lot of
discretion from the one applying it (ex: notion of proportionality, distinction etc….)

3. Definition

Is a branch of public international law, whose rules limit the use of violence in armed
conflict.
This limitation of violence has two goals
The first one is to spare those who are not or who are no longer taking part in
hostilities (civilians, wounded, sick, detainees) and the second one is to limit violence
to the required level. To regulate the means and methods of warfare.
(prohibition to use cluster bombs, landmines, you cannot shoot civilians)

The specific features of IHL are as follows:

1) It is a branch of interna onal law, so its rules can be conven onal sources (many trea es)
compulsory to a state or customary1:

1) 1 Unwri en rules, that are binding. There is a very heavy prac ce of states that have supported
that rule, because they believe, that that rule has to be applied
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Countries that have not ratified additional protocol I, but these rules are still
customary law
2) IHL concerns both IAC and NIAC

There are much fewer rules for NIAC than for IAC.
3) These rules are designed to protect vulnerable people, whatever the cause of the con ict.
No discrimina on is possible.

This definition puts into light the basic principles of IHL:

4) dis nguishes between civilians and combatants
5) This de ni on includes the no on of avoiding causing unnecessary su ering (an
essen al no on of IHL)
6) This de ni on incorporates the principle of military necessity and
7) propor onality.

We can see the limits of IHL:

1) Does not forbid war
2) Don't protect everyone, as long as you can be a military target, you can be
neutralised.
3) Does not make a di erence linked to the objec ve of the armed con ict
4) Assumes that the par es to the con ict are ra onal. It is o en a calcula on of
reciprocal advantages, so it is to your advantage to apply the rules of IHL, because
you say to yourself that if the members of my group nd themselves in the hands of
the opposing party, you expect them to receive the same treatment that I will give to
theirs.

IHL is simple law, it's dichotomous: either it's a con ict or it's not. It's complex to analyse
situa ons and determine what type of con ict is involved in order to know which rules
apply.

4. IHL and public international law

Understanding the link:

Organisation internationally is more horizontal than within nations
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When is IHL applicable? When you have entities that are not able to peacefully settle
their disputes
If they have recourse to force

Public international law states that you should not recourse to force

IHL begins when states violate international law

Secondary set of rules, comes into play, when general rules of public international
law have been vilated

IHL will tell States and non-state armed actor how to behave when state has lost
control over its territory and is facing another state or a well organised armed group
(IHL applies as well)

IHL will also apply between non-state armed groups.

The basis for regulation of non-international armed conflict: Common Article 3 to the
4 Geneva Conventions (read tonight!!!)

A small reminder
To understand the rules applicable to Conven on: refer to Vienna Conven on on law of
trea es, 1969
Drat ar cles on responsibility of states from interna onally wrongful acts, 2001

A last observation: since IHL is a branch of international law, all rules are normally
applicable except if it is clearly stated. So IHL will have recourse as we will see to
custom, conventional sources, rules of interpretation, rules about state responsibility,
including imputablity, etc…

One important rule of international law that was formulated in the Lotus case before
the PCIJ (1923) is that everything that is not forbidden is allowed.
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Brief Fact Summary.

Turkey’s (D) assertion of jurisdiction over a French citizen who had been the first
officer of a ship that collided with a Turkish ship on the high seas was challenged by
France (P) as a violation of international law.

Synopsis of Rule of Law.

A rule of international law, which prohibits a state from exercising criminal jurisdiction
over a foreign national who commits acts outside of the state’s national jurisdiction,
does not exist.

When it is not prohibited – then it is allowed

IHL is always one war behind, and sometimes you have to experience the atrocities
of a war to prohibit them.

When IHL began to be codified at the end of the 19th century, the negotiators were
aware that they could not prohibit everything.

In IHL, therefore, just because a specific behaviour is not prohibited does not mean
that it is authorised by international humanitarian law.

This is based on the "Martens Clause", a clause under which "(...) in cases not
included in the regulations adopted by them (the belligerent parties), the populations
and the belligerents remain under the protection and the rule of the principles of the
law of nations, as they result from the usages established between civilised nations,
from the laws of humanity and from the dictates of public conscience".

It is repeated in other more recent texts, such as Additional Protocol I of 1977 (art. 1
para. 2).

See ICRC note on this issue.

5. Jus in bello and jus ad bellum

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Ius ad bellum aims at responding to the question: does state A has a right to attack
state B?
This is not IHL
IHL applies no matter what the reason or the origin of the conflict
Arguments of ius ad bellum cannot be used to prevent application of IHL

We must be able to give all victims of conflicts the same protection. So we cannot
invoke jus ad bellum arguments, which would justify the just cause for applying or
not the rules of IHL. So if we intervene in a conflict (for example, in the context of a
military coalition) to support the party that we think is "right", we will have to apply the
rules of IHL to everyone, including those who are wrong or who themselves violate
the rules of IHL.

If the members of this coalition use force, they become a party to the conflict. They
will therefore have to respect the rules of IHL and also accept being a target and
being subject to the use of lethal force.

Today, we have situations that threaten the distinction between Jus Ad Bellum and
Jus in Bello, particularly in so-called humanitarian wars. (R2P - responsibility to
protect)

In these situations of humanitarian intervention, it is very difficult to ensure

compliance with the rules of IHL because of the difficulty in the field of differentiating
between humanitarians and combatants, although this distinction is essential for full
compliance with IHL. If humanitarian interventions use force, their members become
legitimate targets.

6. IHL and Human Rights Law

Both are protecting fundamental rights, but the approaches to both international
branches of the law are different
Art. 72 additional protocol I: IHL recognizes that it’s complementary to Human Rights
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“The provisions of this Section are additional to the rules concerning humanitarian
protection of civilians and civilian objects in the power of a Party to the conflict
contained in the Fourth Convention, particularly Parts I and III thereof, as well as to
other applicable rules of international law relating to the protection of fundamental
human rights during international armed conflict.”
IHL only applies in situations of armed conflict (IAC or NIAC)
Human rights law applies in all circumstances
When IHL is applicable then also HRL is applicable
Important element in IHL: it is the result of a balance between military and
humanitarian interests
So you cannot derogate
IHL is the result of a balance between military interest and humanitarian interest
!That’s why you can’t derogate
Contrary, to HR where there is the possibility under certain conditions to derogate
!but there are some exceptions (torture, forced disappearance, protection against
discrimination) !Those are provisions you can’t derogate. They are fundamental
rights from both the viewpoint of IHl or HR

Differences in the way they are drafted:

! HR are there to protect the individual against abuse of the state
! Geneva conventions are more like a code of conduct, dictate behaviours of the
parties, how you have to behave in a conflict, to protect the vulnerable

DIH DH
Scope of application Scope of application

Armed conflicts Mainly in times of peace, but can also

be applied in times of conflict (in all
circumstances).
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Derogation Derogation

No. Takes into account military necessity Art. 4 of the International Covenant on
Civil and Political Rights - in times of
emergency when the life of the national
is threatened. Possible measures
derogating from the provisions of the
Covenant to the extent strictly required
by the exigencies of the situation
Protected rights Protected rights

More like a code of conduct for those Recognition of the subjective rights of
taking part in hostilities. individuals against public authorities /
States
Its aim is :
Cover relations between States and
1) To protect the individual, by
individuals under their jurisdiction
ensuring that those who are not,
or are no longer, taking part in Aims to control abuses by public
hostilities are treated humanely authorities
(ensures the protection of those
essential rights which are most at
risk during armed conflict and
which are not incompatible with
ACs);

2) Protected persons are defined

according to their status

3) By limiting the methods and

means of combat
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Implementation Implementation

Pragmatic approach: seeks to put the Objective: recognition of rights that have
situation in order or at least improve it been violated. Denunciation

A wide range of resources: - Internal structure of the State

- Art. 1 - Mechanisms created by the UN

or regional instruments
- Protecting Power
- Reports
- Internal State structures
- Complaints
- Lawsuits
Universality Universality

Yes Universal and regional

A few comments on the table:

HR: if State ratifies the treaties, it will have to report on its application in law and in
practice to international treaty bodies.

There is the possibility to complain at international level.

In IHL there are no such bodies, no obligations for States to submit reports, you don’t
have commitees !The implementation of the respect of IHL was negotiated in a
pragmatic way (peer to peer pressure)

Important: Common Article 1 to the Geneva conventions:

Parties have to “respect and to ensure respect for the present Convention in all
circumstances.”
! general international legal obligation of States to honor their treaty commitments
Another important element of control is the ICRC (guardian of IHL under the
convention)

Protecting power ! third state that is designated by the parties to ensure that they
respect IHL
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Different approaches

In 2010 ICRC and CH tried to get the state to adopt a mechanism of control (they
failed)
State wouldn’t agree to have an external party looking at their practice in war.
They wouldn’t want to submit a report and answer to anyone in IHL

There are much more rules applicable for IAC than for NIAC
The complementary aspect of HR and IHL is particularly important in non-
international armed conflict
Example of lack of rules in NIAC: administrative detention (e.g. Guantanamo)
often used in case of terrorism, people can be detained without charge (it is
absolutely common in armed conflict to detain prisoners of war: see CG 3 is about
administrative detention of Prisoner of War)
in IAC there are a lot of rules for how you have to conduct the detention
In NIAC there is no rules of administrative detention ! that’s why HRL is needed
habeas corpus = absolute fundamental right to challenge your detention in front of
an authority !allows a person to go before a judge / competent authority to
challenge the legality of your detention !all administrative detainees have that right
too !specific rules in IAC, but non in NIAC, that’s why we have habeas corpus.
IHL is lacking some rules so we have to take some rules from HRL
Important states are contesting the extra-territory applicability of HR they have
ratified

Iraq invasion (2003)

A Coalition came into Iraq to support the rebels, during their time in Iraq the armed
forces of the coalition have committed a number of violation of HR (including
prohibition to torture) !they said HR wasn’t binding to them, cause they were acting
outside their own territory !If you follow this argument, what rules could we apply,
bc it wouldn’t be IHL and HR?

State that is committing a violation of HR outside it’s own territory !State is being
accused of this violation !State says the treaty doesn’t apply to it outside its
jurisdiction?
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7. Sources of IHL (conventional and customary)

Two main sources: Conventions and customary ruling

Codification of IHL started at the late 19th century

A lot of efforts to organise the European society, but within these rules, war was not
prohibited, so there was a necessity to develop rules that are applicable to law
When you look at the conventions you have 2 groups of treaties: Geneva law and
the Hague law
Geneva law is mostly all rules that protect victims of war
The Hague law regulates means and methods of war
Geneva law and The Hague Law are called this way because of the place of
adoption of the treaties concerned.

Geneva law
! started with the Battle of Solferino (1859), between the French and Piemonte’s
army against the Austrian army !300’000 soldiers fighting each other (on open field)
Henri Dunant from Geneva was there (from commerce) what he saw was appalling:
no one taking care of the wounded, so he asked population of Solferino to help the
wounded and suffering. When he came back to Geneva he wanted to do something
against that and thought of having a treaty to protect the ones wounded and dead on
the battlefield. Read A memory of Solferino
he also taught of creating some form of national society that would be supporting the
armed forces who take care of the injured soldiers !that was the basis of the first
GC (ICRC website) !first draft of the GC in 1864
If you are wounded, sick, dead you need to be respected, but you also need to
protect those that are providing the medical care !first reference to the emblem (red
cross)
1864: efforts to adapt same rules for naval warefare but it was not possible

World War I
lot of focus was put on adopting a convention for the protection of the prisoners of
war (members of the opposing armed forces that fall under your jurisdiction)
Because they were not well treated during the first world war
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IHL says that we can diminish the military capacity of the opponent by having
prisoners of war but as soon as the war is over we can release them (that was not
the case in ww1). If you do not, it is a war crime.
Protecting civilians was also a problem in WW I
Up until 1949 there only were rules to protect the members of the armed forces
During WW II dozens of millions of civilians died.

Why do we have 4 conventions and what they are covering?

1st convention: sick, wounded, dead in battlefield (Armed forces)
2nd convention: same but for naval forces, members that are at sea (armed forces)
3rd convention: prisoners of war (administrative detention) (armed forces)
4th convention: protection of civilians (civilians and occupation)
! first time that civilians were protected

Read convention 1 and 4

Common article 3 is unique (common means it is in all conventions)
Sacred text! You need to know this!
Regulates all NIAC
“In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed ' hors de combat ' by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
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(2) The wounded and sick shall be collected and cared for. An impartial humanitarian
body, such as the International Committee of the Red Cross, may offer its services to
the Parties to the conflict.The Parties to the conflict should further endeavour to bring
into force, by means of special agreements, all or part of the other provisions of the
present Convention.The application of the preceding provisions shall not affect the
legal status of the Parties to the conflict.”

Incredible achievement of negotiators

First time it applies to NIAC as well
You have gradation of violations in the GC !if a State violates the provision of IHL,
State can be held responsible for it (state responsibility) !remedy: stop violation /
pay damage / return to what it was before /recognition of the violation
Violation of provisions that are so serious that they amount to crimes !these crimes
are called grave breaches !If you have a grave breach, the person who has
committed it has to be prosecuted but not only by the state where the breach was
committed but in any place in the world, even if there is no territorial / personal
connection
first time that the concept of universal jurisdiction was written down in a Convention
usually you need a link (territorial or personal), but in these cases it is so important
that every State has the obligation to prosecute

What happened in the 60’s? Decolonization in Africa, Vietnam War

forced to update the protection we had in GC, in particular the protection in NIAC

Led to the adoption of the 2 additional protocols

!protocol 1: international armed conflict, now in prot. 1: more rules dedicated to the
condition of hostilities (more related to the Hauge Law than to the Geneva Lw)

!protocol II covers the NIAC !complementing to what art. 3 common is saying

More rules for conduct of hostilities (more to the Hague law related)
Protocol 2: covers NIAC, nothing new, is just complementing
Important for the exam as well
Can apply only if the states have ratified them
AP 1 (174 ratified) and AP 2 (168 ratified) have not been ratified by all the states
But it is possible that rules in AP 1,2 could be customary law as well (if not ratified,
but then still applicable)
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Geneva Conventions have been ratified by all states!

The Hague Law

= about the means and methods of warfare, how weapons should be regulated
Starting point is the Lieber Code (Lincoln requested an American Professor to come
up with it for the American civil war, which was NIAC)
Important text:
Another important moment came in 1866 with the St Petersburg Conference. The
aim here was to reach universal agreement on certain rules to mitigate the calamities
of war. A declaration was adopted, which included certain fundamental provisions
that are still in force today, notably concerning projectiles weighing less than 400g or
explosives. Two principles should be borne in mind, the first being that IHL can only
be used to weaken the enemy's military capabilities. Another principle is that any
weapon that needlessly increases suffering or makes death inevitable must be
prohibited.

In 1899 and 1907, two major conferences in The Hague sought to ban the use of
war. It did not work, but a dozen conventions were adopted to ban certain weapons.

In particular, the Fourth Convention, revised in 1907, and its regulations on war on
land. It includes provisions on the conduct of hostilities and occupation, and was
used at the Nuremberg trials.

After the First World War, the use of mustard gas led to the adoption of a 1925
protocol banning asphyxiating gases. This protocol was supplemented in 1972 by
the convention on the prohibition (= of the production, stockpiling and use) of
biological weapons and in 1993 by the prohibition (= of the production, stockpiling
and use) of chemical weapons.

These weapons are prohibited in all circumstances, in international and non-

international armed conflict.

In 1954, the focus shifted to the protection of cultural property.

In 1977 we find the two additional protocols to the IV Geneva Conventions.

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This was followed in 1980 by the Convention on Conventional Weapons (= those

that cause unnecessary suffering), which must be banned. This was a reaffirmation
of the St Petersburg conference.

5 protocols have been adopted to implement the Convention's ban:

! Protocol I on non-locatable shrapnel,

! Protocol II on traps,

! Protocol III on incendiary weapons,

! Protocol IV on laser weapons,

! Protocol V on explosive remnants of war.

In 1997, the Ottawa Convention on the Use, Stockpiling and Transfer of Anti-
Personnel Mines banned this type of weapon.

2008: ban on the production, use and storage of cluster bombs.

In 2013, the Arms Trade Treaty banned the trade in arms in situations likely to lead to
the commission of war crimes.

In 2017, a treaty aimed at banning nuclear weapons (= entry into force in July 2021).

Geneva law and Hague law will come together in the branch of international criminal
law, another branch of IHL.

In terms of conventions, the fundamental instrument is the Statute of the

International Criminal Court (= Article 8 in particular) (Examination question on this
article, so you need to know it).

This article sets out the war crimes that fall within the jurisdiction of the ICC and that
have been committed during an international or non-international armed conflict.

! A number of amendments have been made since 1998 to add new crimes giving
the ICC jurisdiction.
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International criminal law comes into play when there are particularly serious
violations of IHL. When there is a violation of IHL, the State is always responsible.
When the violation is particularly serious, the responsibility of the individual is added.

IHL is therefore a treaty right. Qualification will therefore make it possible to find the
treaty that will be applicable.

Before applying the relevant treaty to a given situation, it is important to check that
the State has ratified it. And whether the State has made any reservations.

All the law of treaties found in the 1969 Vienna Convention will apply here.

BUT, Article 60 paragraph 5 of the Vienna Convention contains a provision relating

to IHL: Normally, if a State does not respect its obligations, the other State may
suspend the application of its own obligations. But this article is a reminder of the
principle of non-derogability in humanitarian law. No reprisals are possible.

The great weakness of treaty law is that it depends on ratification by the State.

In addition to conventional law, customary law is used in IHL, i.e. everything that is
unwritten but binding. The content of certain conventions may be declared to be
customary and therefore binding on all. In such cases, reference is made to
customary law, which reflects the content of the convention.

Through custom, certain provisions of the PAI now extend to the NIAC.