Introductory Sessions

16.01.23
 Though we use these terms, you read them together- as a separate branch of international
law. It includes international human rights. They are two branches of international law.
 International humanitarian law is nothing but the law of armed conflict- recent examples are
Russia and Ukraine- whether it amounts to a situation of war/ armed conflict- the UNSC
observes that it is a war/ armed conflict.
 Recent decisions of Indian SC- right to privacy, right to life and liberty, etc., the theory
applied may seem to be the natural law theory, but it includes positive law as well- the man-
made laws, treaties, conventions, bilateral understandings, etc. These are man-made laws and
may be considered as soft law. International law is not soft law- the state is a subject but it
must abide by principles of international law while exercising sovereignty. Jus cogens is a
major such principle. For example, Article 21 says that no person should be deprived of life
and liberty except procedure established by law- till the comma, it is natural law theory and
after the comma, it is positive law theory. Every State has different theories to apply. Death
penalty may be an easy way (not barbaric) to execute a person, though it may be a violation
of human rights. In these circumstances, the state takes the defence of sovereignty, and
international humanitarian law stops the state from doing so.
 There is a debate on universality of human rights- culture, traditions, state practices, etc.
which serve as excuses to not make universal human rights despite being a party to the
UDHR, which confers universal rights.
 The bifurcation on non-justiciable and justiciable rights has no place in international
structures- there is no distinction in civil-political rights and socio-economic rights. Such
rights may include non-residents also.
 Example- Sabarimala decision- India has a group of people’s right concept for the right to
practise a religion, while the west has an individualistic perspective, which focuses on
protecting the rights of women and disregards traditions/culture etc. Collective rights imply a
collective responsibility but it protects an individual right.
 Discussed course outline: 5 books prescribed- Oliver is famous (more emphasis on state
responsibility), Jack Donald, Andrew and Upendra Baxi are also famous.

17.01.23
 Individualist approach is a Western philosophy while India believes in a collective approach.
Therefore, principles like the polluter pays principle is an individualistic approach since you
only punish the individual.
 E.g., Karnataka Hijab issue à while element of religion involved (which is a collective
right), when it comes to enforcement, the approach ultimately becomes individualistic.
 Collective right: collective right, individual duty. ESC, Constitution, everything takes an
individualistic approach even though we believe in a collective right approach.
 Examples:
 Iraq 2004 UN resolution
 Syria 2014 UN resolutions
 Whether right to vote is a constitutional, legal or a natural right?
 He believes it is a natural right.
 UDHR – right to participate in a government not because it is a man-made law but rather
because you are a human being you have a right to participate.
 This is subject to the 18 years restriction in India which is a man-made law.
 Every positive law must have an element of natural right otherwise it will be ultra vires.
 In case of monarchies and those laws which are contrary to this principle will attract the
principle of jus cogens. It will therefore be considered a violation.
 Human rights are nothing but “allow me to live the way I want to live”. You can punish for
the safety of others- it does not violate the natural law.
 There are three duties of the state in terms of protecting human rights-
1. Duty of the state is to preserve the respect of the citizens/ individuals.
2. State has to protect the rights of individuals. No one should enjoy their rights at the cost of
others. State has to introduce a law to protect the rights of its citizens.
3. State has a duty to fulfil all rights guaranteed as natural rights. This may be through
welfare schemes, etc.

NEWS: “Pakistani rights experts urge action on coerced religious conversion, child marriage”
– 16 January 2023
th

1. Module I: Introduction

18.01.2023
Concept of Human Rights
Why Human Rights Claim is against the State not individual?
 Few developing countries including India, do not emphasise much on economic, social and
political rights.
 Universality of HR: No state should accept the interpretation of states other than the P5
states.

NEWS: “Security Council: UN rights official raises concerns over Ukraine religious freedoms”
 Rights includes Human Rights
 In Constitution, we recognise positive and negative rights
 CP rights refrains state so it is negative and ESP rights are positive.

NEWS: “UN raises Concern over Ukraine Religious Freedom”

I. Armed Conflict:
 The situation has not been declared as armed conflict situation. Only when the international
community decides so, it will be said.
 When armed conflict situation arises, it means that there is no one to take care of the citizens.
Thus, the law of armed conflicts needs to be applied to regulate the functioning and also for
protecting basic human rights. It will be according to provisions of Geneva Convention and
trial will be before International Court of Justice not national courts.
  Declared situation of war does not mean a state will declare an armed conflict. An expression
is not required, the international community itself decides that the situation is not a peacetime
situation and hence, international humanitarian law is to be applied. Whenever there is an
armed conflict, it means that the situation in that country is not under that sovereign state,
and that no one takes care of the citizens and therefore, the international community is
required to take care of these people. Military cannot attack the civilians under the fourth
Geneva Convention Act, which deals with the protection of civilians.

II. Right to Religion:

 Right to religion is now a question in the State as per the news article which means that the
cultural rights are being violated, which are protected under GC 1949 on Protection of
Civilians During Armed Conflict Situation and Additional Protocol 1.
 S.3 of GC provides sanctions
 There is restriction and not denial in Ukraine. This is a violation of IL- the restriction
includes the territory occupied by Russian armed forces.
 Since civilians are involved, violation is attracted since protection of civilians is provided
under GC.
 Who will take responsibility? Russian armed forces can be tried if found accused.

III. Criminal Charges

 Three types of control: 1) effective 2) overall 3) complete territorial control – then the
responsibility shifts to the state taking control. [Yamashita Case on Control].
 Yamashita case: He was appointed as commander-in-chief and then divided his troops in
three parts. He was sitting thousands of miles away- those troops committed genocide, a
crime against humanity. Those troops who had committed a crime, the commander in general
was to be held responsible. If it were criminal law, the commander would not be responsible
for it. However, the decision passed considered that there were all three types of control
exercised by the commander, and therefore, even though the commander was not present at
that time, he was held responsible for the genocide. These days, these principles are not
applied- tribunals have their own set of rules which they might apply.

CIL v. GPIL
1. Responsibility: Lies with the state in CIL. If state indirectly or directly, permits by
legislation (Systematic gross violation of HIL; slavery, torture, aggression, crime against
humanity, terrorism, piracy), it violates CIL.
2. CIL more or less pertains to substantive protection. State practice and custom should not
violate any IL and that comes under CIL. However, GPIL is always procedural. Example:
delays in trials, good faith, Res Judicata, Immunity, Privileges.
3. Jus Cogens: There must be an absolute restriction by State on certain practices. Example:
slavery, racial discrimination in the US, arbitrary detention, etc. Absoluteness is an element.
19.1.2023
NEWS: “Unity in Security Council essential, in face if Taliban rights violations against women
and girls”
Very pathetic conditions in the State of Afghanistan. You are least concerned as to whether the
state follows the conventions or not. Unless we know what kind of obligations the State has, we
cannot write an argument.

First obligation, is the duty of the state to respect the rights guaranteed to every
individual/citizen (CITIZENS ARE ONLY THOSE WHO ARE CITIZENS)- either by way of
constitution, ICCPR, or any other code. Respect means that the state is not allowed to interfere in
the enjoyment of the rights of the citizens, which is the way by which the state gives respect to
the rights of an individual. For example, the state remains silent on the right to religion- the
Hijab issue- the state is required to be silent and neutral, which is respect. Right to education is
another example- the state has to allow private schools also to fulfil this right, and private
institutions cannot be stopped by the states.

The second obligation is the duty of the state to protect the rights of individuals. Free legal aid is
associated with the third obligation or the duty of the state to fulfil the rights (for example, free
education), wherein the state may also come up with an excuse of not having enough resources.
States should have legislation to protect the rights of the people. If not, it means that the state has
failed to protect the rights of individuals. State must also enact proper remedies with every
legislation- ubi jus ibi remedium.

Arguments in the News Article on behalf of the State

 Higher Education is not a basic, universal right.
 Debate: Nature of the right is different than the legitimacy of the right. Citizens cannot
simply demand any rights that are not legitimate.
 Other argument: legitimacy not required. Nature of the right itself creates an obligation for
the state. That is: legal right can be demanded but natural right is free. Eg: Education v. Free
education.

Customary International Law and HR

Opinio Juris and Jus Cogens

 Opinio juris (which is applicable by judges)- which is also a source of international law. The
meaning of opinio juris is the belief and presumption of the judiciary and it never creates an
obligation on the state (only CIL creates an obligation, which is based on opinio juris) and
therefore, is the second element of international law. It is one kind of assertion of any legal
right which the state has created and belief in that practice. So, it is an assertion of the right
of the state to claim that X is a practice and custom of our state. It is a corroborative of the
defined customs and practices of the state. Without an opinio juris, the decision may be ultra
vires. CIL has to be justified, and the justification is provided through a congruence with the
opinio juris.
 Jus cogens imbibes absoluteness- in no circumstances, can some practices be accepted. Erga
omnes implies that whatever the decision/judgement/obligation in the name of CIL/opinio
juris/ general principles of international law- whatever the court decides, should apply to all
states uniformly. It is not only concerned with only those states party to it, but also to other
states who are not a party to it. No one can deny us the right to life, but this right to life may
be based on different parameters, though no state can deny what is written in the UDHR. No
constitutional provision of any democratic state would be without ICCPR/UDHR/ICESCR-
though it is not binding and there is no force to comply with the provisions.
 Nature of the right is different from the legitimacy of the right. You cannot simply demand
any rights which are not legitimate. The other argument is that human rights itself create an
obligation on the state. It means that even if you demand a legal right (natural right is pre-
existent- nothing but education and free education). The disagreement means that free
education is not only till primary, but till you have enough resources to survive. This may
vary from individual to individual- though when free education is provided, it becomes
equity (collective right).

Erga Omnes Principle

 Whatever the decision, judgement, adjudication, in the name of CIL, GPIL, etc. – whatever
he court decided, applies not only to the party to the dispute but equally to other States
 Uniform interpretation through positive law trying to make it universal in nature
 No constitutional law of any State can be against UDHR, ICESCR, ICCPR- erga omnes
obligation

Erga Omnes Obligations

1. Duty of the State to respect the rights guaranteed to its citizens/individuals (through UDHR,
ICCPR, etc. “Respect” means that the State is not allowed to interfere with the enjoyment of
those rights of the citizens. Eg: Right to Religion- Hijab Issue. States remain silent and
neutral – respecting the rights. Eg 2: Right to Education- States cannot intervene by stopping
private institutions to set up schools.
2. Duty of State to protect the rights of citizens/individuals. This means that at the time of any
violation, the State should have a legislation to protect the rights. If the State does not have
legislation, it will fail to protect the rights. Along with protection, every legislation should
come up with remedies. Eg: Article 21A
3. Duty of State to fulfil the rights of citizens/individuals. Eg: Free Education.

23.01.2023
NEWS: “High Commissioner reports sharp decline in respect for children’s rights” – 18 th

January 2023
Three articles he is relying on today:
1. Allison on concept of human rights (has sent PDF)
2. Jack Donnelly on cultural relativism and human rights law;
3. Jack Donnelly on relative universality of human rights.
Disagreements on Nature and Philosophy of Rights
 There are certain rights which are not confined to the duty of another. Since there is no duty
on the other person, the right ends up being violated.
 Human rights petition: Any petition regarding HR is not a claim, because claims have to be
justified. Here, suo motu action can also be taken and submission of documents to justify is
not necessary. It is a demand. It is about entitlement i.e., whether such entitlement exists will
be interpreted in association w the constitution.
 Rights are divided into three: Liberty, power and immunity.
 There is a tussle between the sovereign state and the international community in terms of
application of provisions of human rights. The Declaration on Human Rights is not
enforceable, but the Charter is, since it is affirmed by the States. The sovereign state does not
follow the individualistic approach to protect the rights of the individuals in the country.
 The interpretation of the charter does not allow the community to interpret differently, the
provision of the UDHR. The individual, if a domicile of X enters into the territory of Y and
violates human rights/ any law which prescribes capital punishment, but the same law in X
does not prescribe a death penalty. This requires a universal interpretation of the right to life.
The international community advocates for a universality in the interpretation, but it also
allows the states to make reservations into international treaty and convention. Under the
Vienna Convention, states are allowed to make their own laws and reservations into the
provisions of the international provision.
 The state argues that if the international community has recognised our practices and they
have been labelled as customary international law, the international community ought not to
interfere and advocate for universality. The question is that why is there a dilution of national
courts’ interpretation and international tribunals/ ad-hoc tribunals despite a similarity in the
provisions?
 Right to education is associated with Article 21A in the Indian Constitution. It is also there
under Article 41. Primary education is free and compulsory since it is associated with human
dignity- meaning that the ability to read and write helps you lead a dignified life. We have
the RTE (right to education), but we also have private institutions- does this dilute the right
to dignity by using positive law, since these schools charge hefty fees and have a 25%
reservation for poor people? This is to achieve equality of opportunity.
 Provisions for equity in commercial law: Substantive provisions in BITs, Contract Act,
Company law provisions for voting by shareholders for M&A, SEBI regulations that favour
investor protection.

24.01.2023

NEWS: “Northern Ireland: UK ‘immunity’ legislation could hamper victims’ rights, warns
Türk”
 Immunity in investigation is difficult to accept when there is a visible violation of human
rights.
 We have seen that there are disagreements- universality of application of human rights, while
states deny that since they have different practices, culture etc. Claims arise when the limits
are crossed- either by legislation or by interpretation of the constitutional courts. However,
these immunities are only found in constitutional law and criminal law of different countries,
 but NOT in international organisations’ documents. Human rights would also be questioned
by entitlement- it does not correspond to a duty of either an individual or of the state to
restrict, for example, the free speech of a person. It may be the case that through a different
law, defamation may be criminalised. There are certain acts which might be listed as human
rights but do not correspond to anyone’s duty to encourage it. Problems arise in three
situations- whether you have liberty to enjoy the freedoms; you have power to enjoy
constitutional rights; and whether you fall under ‘immunity’.

“Social institutions establish certain practices then it is culture. If cultural institutions establish
certain practices, then it is social.”- Vikas sir

Civil rights v. Political rights

Civil rights do not have negative connotation whereas political rights have.
There is a distinction between civil and political rights- at the time of the act, if it is based on the
societal norms, community understanding, etc. are all negative in form. When the government
has to take action for welfare and promotion of a community are all positive rights. When you as
an individual allow an act independently without being subjected to any other person or to the
government, the right is negative in nature. As far as action is considered, you are independent.
Euthanasia is a diluted version of the right to life. Unless these rights are negative, individuals
cannot enjoy their rights. A positive right shall also entail interference by the government. Claim,
demand and entitlement of rights read with liberty, power and immunity to enjoy rights with a
trend of negative and positive rights.
Group of people’s rights- an institution is first a social institution and a country ought to respect
the social, political and cultural rights.

Khap Panchayats are community-based institutions. Decisions of the Khap Panchayats have
never been challenged in a court of law. We are trying to understand cultural relativism (strong
and weak), which varies from state to state and becomes heavy over civil and political rights, so
much so that it is termed as a custom or practice.

Nature of the right v. legitimacy of the right

 Human rights are divided into three: 1) claim 2) demand 3) entitlement
 PIL has no claim it is established through evidence
 here would be variations in positive law since it entails interpretation whereas natural law
entails interpretation so there are no variations.
 Demand is based on natural law and claim is based on positive law
 The rights which are claim/demand/entitlement: 1) should have relied on the liberty to be
exercised 2) power vested on natural law demanded/claimed/entitled to 3) immunity
 Right not to be subjected to an action of another person/state is called negative right.
 Positive rights that are guaranteed to the citizens are not subject to any restriction on
exercising those rights.
 In economic, social, cultural rights, one is subjected to another person/state.
 Positive rights are not restrained by the State, but can be restrained by communities.
 Example: Latin American tribals may not agree with certain positive law established by the
State since it is recognised custom and practice.

Radical Relativity of HR read with Cultural Relativism

Examples in India
 Certain practices based on social norms/institutions/acceptable practices. Eg: Gram
Panchayat in India. The decisions made by them are challenged before courts. So in this
example, cultural practices supersedes either natural or positive law.
 Internal evaluation scheme is that strong that it does not allow outsider evaluators to evaluate
the situation. The punishment is accepted without change. Strong cultural relativism.
 External variations in certain practices help reduce violations. Eg: Honour killing, child
marriage, female infanticide. [he wants Indian examples in exam]
 Another example: AFGHANISTAN MEI GIRL CHILD KO REMOVE KAR DIYA.
 If cultural relativism is weak, it allows outsiders to evaluate and then make an amendment in
the practices- a new version of the old practice is evolved.

25.01.2023
NEWS: “Top UN body asks what more can be done to stop genocide”
Now hijab is an issue in India. Women, due to cultural reasons, may opt to continue wearing the
hijab. Culture supersedes individuality for some people. It becomes easy for people to recognise
the community from which the person belongs, and therefore, leads to their culture bringing
them recognition and identification.
Because of this, there are some reservations based on a culture- EWS in India should NOT have
happened. If you bring about reservations, they must comply with international law and theories.

Does religion fall within the umbrella of culture or does culture fall within the umbrella of
religion?

Death penalty and its interaction with the right to dignity

If the date of execution is confirmed after three months, is it a question of dignity? Yes, mental
stress caused to the convict is affected. Nalini and Kasab cases and the mercy petitions filed also
deal with this. Here, note that mercy petitions are not a claim and do not attract positive law,
only natural law. Rejection of mercy petition comes under immunity.

Three levels of interpretation of Human Rights provisions:

 Substance list of human rights (dignity)
 Interpretation of human rights (specification of substance)
 Form in which human rights are being implemented

Death penalty has been declared by a court and the order says that after three months the person
would be hanged. The trauma during those three months would be huge. This would infringe the
human dignity of a person. Look at the arguments of Kasab’s mercy petition in a Lok Sabha/
Rajya Sabha debate. The timing of the death penalty is a huge issue.
Interpretation: Second level is specification of substance and third is implementation. First one
he might have mentioned in last class idk it’s not in the notes.
Implementation wrt death penalty example: Saddam Hussein’s public hanging is barbaric and
a violation of right to dignity.

Documentaries on: Culture and universality of human rights (literally the most basic shit ever)
and Antonio Gutteres’ culture monologue (“Cultural diversity can be considered as richness and
not a strength” and idk how this is related but he’s saying the correct way of observation is not to
read the constitutional provision and then identify the violations in a situation but this is not how
the international community deals w things).

Case Study 2: Toniela v. Australian Christian College

Cook Island hair cutting case (Queensland NHRC)
Queensland NHRC case decided in August 2022 which was challenged and overruled à the
cultural practice in question was directly associated w Indian context. While this does not
mention that it is a violation of HR and only mentions some provisions. We should not accept
what we read and not have rigid mindset.
A five-year-old boy of Cook Island descent commenced school in2020 in a Christian private
school attended by his older sister. It is a cook island custom to not cut the firstborn’s son's hair
until a ceremony is held. Ceremony was to be held at the choice of the parents. School had a rule
to not let boys have long hair, and the boy was not allowed to attend school till he cut his hair.
Cultural practice and timing are a characteristic of the attribute of the race. Unenrollment from
school amounted to excluding him from school and unfavourable treatment in school. It is a
serious step, and causes dislocation, emotional distress and effects on a child's perception of their
place in a community. Rules regarding appearance are not discriminatory merely because they
are dissimilar for males and females, and one sex was treated differently than the other. There
was unlawful discrimination of the boy on the basis of race. No compensation was awarded,
since he was allowed to attend school before cutting his hair. However, the school was to make a
written apology to the mother of the boy.
Vikas sir:
Here, first identify the cause of action. Then identify the persons affected. Then find out how it
can be resolved (this points to a balanced approach bw cultural practices and guaranteed norms).

30.01.2023
A rule may not per se create discrimination, but when it remains in force for a longer time period
than is desirable, it may cause discrimination. For example, reservations have now stayed in
effect in India for more than 70 years, and therefore, according to sir, create discrimination now.
This is called indirect discrimination.
Undertrial prisoners have compensations prescribed to them for computation of the loss caused
to them and their families. There have been no judgements on this point, which lay down the
objective criteria for determining the compensations in cases of violation of human rights.
Case Study 2 (Contd.)- Appeal Tribunal Decision
Appeal tribunal found that the tribunal had made a mistake in applying the test for direct
discrimination. Non-compliance with the uniform policy was part of the objective circumstances
of the school’s treatment of the child rather than the characteristic of the child’s race. The
tribunal found that the tribunal had made a mistake in failing to consider whether the reason for
the treatment was the race. When the test was formulated and applied, there was no direct
discrimination. The appeal tribunal considered that there was no mistake in the tribunal’s
findings of indirect discrimination.

“Something about Syrian 2015 chemical stuff, High Commissioner of Belgium calling for
support to Ukraine, Myanmar (three news articles but he didn’t discuss and font was too small)
– 27 January 2023”
th

 Geneva Convention IV Addl. Protocol I à against use of chemical weapons but no concrete
action by intl. community
 Example: Belgium and Ukraine are parties to Refugee Convention but Belgium hasn’t
followed
 Example: Myanmar: ICCPR and ICSER violated but not questioned or debated by intl.
community
--
Case Study 3: Xi v WorkCover Queensland [2016] QCATA 134 (23 May 2016)
A woman of Chinese origin and had limited ability to communicate in English alleged that the
WorkCover had failed to provide her an interpreter for her when communicating about her claim.
Her complaint was dismissed by the tribunal and she appealed on the basis that the tribunal was
wrong about the law. The Commissioner intervened in the appeal and made submissions about
language as a characteristic of race and imposing a term in indirect discrimination. Section 8 of
the Anti-Discrimination Act, 1991 extends the meaning of discrimination on the basis of an
attribute to include the characteristic of an attribute (refer to Section 8(b)).

The decision was set aside on two of the five grounds- the tribunal was unable to consider
whether the complainant had demonstrated that a term had been imposed on her because it did
not approach the complaint on the basis that having poor English skills was a character of her
Chinese race. The direct discrimination claim, the tribunal incorrectly identified the comparator
as a non-Chinese person with limited command of English, while it was incorrect to include the
limited command of race under Section 8. Section 8 should be generally applied rather than
specifically on the circumstances of the complainant. It is a characteristic of the race within the
meaning of Section 8 that a person with attributes of a race may need assistance as they are poor
in English, not having it as their first language- poor spoken and written skills. And therefore,
possibly needing assistance with English are often imputed to a person with the attribute of race.

Case Study 4: Conciliation

Did not explain.

Case Study 5: Conciliation

Did not explain.

Case Study 6: Walsh v St Vincent de Paul Society Queensland (No. 2) [2008] QADT 32 (12
December 2008).

He read from PPT. Fun fact: Similar case in India involving Devaswom Board 😊 he did not say
but I am telling you.

Case Study 7: No name in the PPT

Read from PPT.
Important aspect is that compensation was granted since it was a systematic, continuous, gross
violation. These are three elements. Mohammed v. State of Queensland.

31.01.23
NEWS: “Israel-Palestine: UNICEF warns children are ‘paying the highest price’ as violence
escalates”
There is no concrete step taken by the UN Security Council for protecting the rights of women
and children. India has a good relationship with Israel.
Five categories- Read on the UN official website- If the rule per se creates a distinction, then it is
direct discrimination. If the rule per se does not create discrimination and it applies for a longer
time and creates discrimination, it is indirect discrimination and is a systematic gross violation of
rights.
 Civic space (public parks, etc.) and democracy
 Development and living in dignity
 Equality and non-discrimination: these are very difficult to establish. Equality has to be read
with non-discrimination.
 Justice and rule of law: procedural aspects and substantive law
 Peace and security include social security.
------

Case Study 8
An Aboriginal woman lived in housing owned and leased by a non aboriginal community
organisation. One condition of her tenancy was that she needed to do community service. After
her nephew died, she went back to her country for ‘sorry business’. When she returned, she
started getting warnings to engage in services but she couldn’t because she was overwhelmed. A
possession order was made and police came to her door with a warrant. Her advocates made an
application for urgent review and stay. Her advocates made an application for an urgent review
and stay. They argued that the community organisation had failed to engage with the woman’s
cultural rights and the rights of her grandchild and family members in their eviction process.
These rights are protected in the Victorian Charter of Rights and Responsibilities. As a result, the
community organisation withdrew their possession application and engaged an Aboriginal
support service. When the lawyers said cultural rights, they thought that it was the responsibility
of the state to protect these rights (2 category). Equality is embodied in the argument of the
nd

employer- that every employee has to undergo community service. Rule of law would be
embodied since there is an obligation. There can be justice- opportunity and the right were
violated in the eviction process.

Case Study 10: Pressier v Stewart [2005] QADT 33 (24 November 2005)
An accountant who had been working for her employer for seven years took maternity leave, and
then worked from home at an hourly rate for approximately two weeks before giving birth.
About three weeks after the birth, she resumed working from home at an hourly rate, and would
regularly visit the office taking and returning files, sometimes with the baby. This arrangement
continued for about two and a half months when in early December the woman left a note for the
employer saying she wished to return to full-time work after Christmas. The employer said there
was not enough work for her to return full time, and after making an application to the Industrial
Relations Commission to be reinstated, the woman found another job and commenced work
about four months later. The tribunal accepted that the employer had refused to let the woman
return to full-time work because she had taken maternity leave and there was a prospect, she may
have more children.
The tribunal awarded total compensation of $20,973, made up of
 $5,000 general damages
 $450 interest on general damages
 $7.650 lost wages
 $688 loss of superannuation
 $5, 160 loss of bonus payments
 $2,025 interest on loss of wages, superannuation, and bonus payments
 Welfare (3 category) along with equality and non-discrimination.
rd

01.02.2023
NEWS “One year in detention: UN experts demand immediate release of Kashmiri activist
Khurram Parvez” – 01 February 2023
st

Skeleton for upcoming two weeks: the things discussed today. He sent an email yesterday- one
ppt and the sources are there on the last slide of the ppt- you’ll also find other cases there on that
link. He has sent a link in the main email box- it helps on the five criteria discussed above.

The UN Human Rights Council is the highest body which can identify the situation of all
member states with regard to their position and reality on human rights. UN Universal Periodic
Review System is one where India represented and submitted a report to clear the situation of
Jammu and Kashmir. Based on that report, this reaction of the Special Rapporteur was reported.
Parvez is considered as a human rights activist and India is considered as a terrorist. The UN told
India that unconditional release is a must- since he is under arrest for a year and no investigations
have been made. The domestic law does not allow such release under the Unlawful Activities
Prevention Act (UAPA). The UN questioned the anticipatory and regular bail mechanisms under
this act. It is documented that Parvez is arrested under UAPA and detention has been extended
for five times, thereby leading to a serious question to the amendment to that legislation. The
Foreign Ministry of India also responded to the news of November 2022. The question arises, as
to whether the detention laws violate privacy, right to be heard, detention and arrest, equality and
discrimination, (right to life) amongst other rights were violated. India was targeted on one very
important occasion, which will not be discussed.
If you are booked for an anti-terrorism law, the right to be produced before a Magistrate is
curtailed, a stringent bail condition will be imposed, Sections 164-167 of CrPC will apply and
you will be remanded, opportunity to be heard, legal counsel was provided, rule against self-
incrimination, tests like the narco analysis test will be conducted on the terrorist, right to food
(the Muslim prisoner who was expecting Halal food as an example), communication with family
members was allowed (dignity, justice was protected).

Case Study 14:

A hospital required patients to use face masks to prevent the spread of COVID-19. A pregnant
woman had a high-risk pregnancy and was asked to get an online appointment instead of an in-
person appointment. When the woman enquired with the hospital about an upcoming
appointment, she was told she would not be allowed in without a mask. She was concerned about
missing her in-person appointment, particularly because it was a high-risk pregnancy due to her
having a number of medical conditions. The complaint was dealt with under the Human Rights
Act, 2019 of Australia. The conciliator from the Commission assisted a resolution with the
hospital through early intervention. The reason for the hospital is valid, others may also ask to be
allowed inside without a mask, thereby leading to a spread in infections- and the most viable
solution would be conciliation. The other people also have a right to health and you cannot
interfere with their rights. One option- doctor can visit her home and can get done with her
appointment.

Sir: Conciliation usually takes place when against individuals, not when it’s against the State. He
also thinks that perception influences whether we think a HR violation or not (Example: right to
health not very important in India).

2.02.23
NEWS: “Deny legitimacy of Myanmar’s military junta, UN Expert urges”
Military junta has been an issue in Myanmar for the last 2.5 years. There is a military personnel’s
control- effective and overall control in Myanmar. This junta has questioned the citizen’s
democracy- genocide, crime against humanity, violation of human rights, there is no declared
armed conflict and therefore, this threshold is not followed.

The resolution was passed by the UN Security Council and India, China and Russia remained
absentees. At present, India is not a permanent member, this expires in 2024. There is a hidden
interest of India in not being present. Aung San Suu Kyi has been arrested along with 160 other
politicians. The young children are brainwashed by the military, and the military are forcing and
expecting children to take part in the conflict by associating with the military. There is a
documentary on YouTube, please watch. The principle of jus cogens is activated, there is no
democracy, no sovereign state- you find a violation of human rights, including the vulnerability
of the people.

UN Documentary: economic sanctions in the worst case should be imposed, ban on arms, etc.
should be the steps taken to restore democracy in Myanmar. You have to think of the Dominos
effect- India has a vested interest in remaining absent- the Rohingyas come to India as refugees,
leading to a refugee crisis.
Under the Myanmar Constitution, the military does not have any power to take control of the
state- therefore, this invited an interference from the international community. The state is an
actor of international law.

Divided into 3 layers: Promotion and protection of HR- Starts from international (UN and other
bodies) and ends with domestic inferior courts

Charter Based Mechanism: First and foremost office in the UN- is the OHCHR- office of the
high commissioner of Human Rights- this is the main organ of the UN for the promotion and
protection of HR.

Under the OHCHR- there is a composition of the Council- this is the highest body and it is
constituted based on the resolution passed by the General Assembly and the functions expected
by the international community- to control and look into situations at ground level human rights
and their violation and necessary intervention is required for the protection of the citizen’s rights-
right to protect of the international community related to resolutions then recommended to the
Security Council of the UN.

Human Rights Council

 Second highest body- it was created in 2006 and before it was recognised as a commission
but there were a lot of political connections and criticisms and the earlier Human Rights
Commission was renamed.
 This body is responsible to the OHCHR.
 The body/council has 47 members and this body is recognised as an inter-governmental body
and the main duty of this body is to look into the thematic issues and situations of HR and
sometimes even undertakes empirical surveys.
 Thematic issues including those related to children/ refugees/ education/ bonded labour/
women/ LGBTQIIA+.
 How to decide the theme? This is on the basis of the Bill of Rights and the rights guaranteed
thereunder.

Main function- thematic issues and their violation by the governments in various countries and
in case they are required to send the special report, they are required to do so.

How do they collect Data?

Not merely on doctrinal research. They have concrete mandate highlighting 3 sources-

Universal Periodic Review (UPR)

Universal Periodic Review is a system which is state driven where every member state of the
UN after every 4 years interval. India Submitted in last 2022 and usually it is a very one sided
and praise oriented report where the government praises the policies which protect HR. This is
 further discussed in the GA debates also. Other member states also raise queries on the reports of
the other countries. How does the UPR Function? When the state submits a report to the
concerned authority- the main reason why every member is required to submit is to ensure equal
treatment for every country

Advisory Committee
They work as a think-tank who also undertake field research and field studies. Members of the
committee are entitled to take help and assistance from researchers and NGOs recognised by the
UN to understand ground level realities. These members are not entitled to make decisions or
give suggestions- they can merely submit opinions to the HRC who will then come out with final
say. 18 experts who are responsible for inquiring about first-hand situation in countries- usually
meet twice a year- Feb (human rights council meets in March) and August-

Complaint Procedure Mechanism: only body where they receive and are entitled to receive
complaints from individuals from their own state and this is the only body where you can receive
complaint from an individual and in all other forums state are actors from whom complaints are
received. This is thus an exception.

Special Procedure: 1503 confidential procedure was what earlier existed and because of the
politicisation of the procedure that earlier procedure has been stopped. They can examine the
reports also by sending experts to conduct field studies/confirmations.

HRC membership is based on equitable geographic contribution. Out of 47- 13 states are from
Africa- 13 from Asia-Pacific; 8 from Latin America; divided Europe in East and West to give
equal contribution to Middle-East (7 for East and 6 for West) (CONFIRM ONCE)- Tenure is 3
Years and there is allowed for re-election and maximum period if 2 terms and thereafter no re-
election. Resolution 60/251 the constitution of the HRC is based on this.

Treaty Based Mechanism

9 major treaties which are core human rights:

1. Racial discrimination
2. Social and cultural rights + one optional protocol
3. Elim of discrimination against women+ one optional protocol
4. Migrant workers
5. Prevention of torture + optional protocol
6. Persons with disabilities + optional protocol
7. ICCPR
8. Rights of a child + 2 optional protocols
9. Protection from forced disappearance

5 treaties are where individuals can file complaints against their state and this will go before
therelevant committee who analyse these complaints and identify the shortcomings of the state
vis-a-vis their responsibilities.
 09.02.2023
“UPR: A Critical Analysis” PDF shared by sir - need to read only 10 pages

Three International doctrines:

a. Surgical doctrine;
b. Backlash doctrine;
c. Severability doctrine.

ECtHR: Ballilos case- making reservations in HR treaties is contradictory of Art. 19 VCLT.

Report Submitted by India- 20.09.2022

2 Parts- Introduction and Part II- the concerns and recommendations of the previous reports have
been incorporated and to what extent by showing legislative policies and other developments.
This is on page 3 in the report.

What all we have applied from the previous report from 2018-2022?

i. Affirmative reservation action in favour of EWS- 10% for 10 years. Upheld by SC

ii. Speedy Redressal for SC and ST individuals- Prevention made to SC ST Act- can arrest
without filing an FIR and no bail if prima facie case made out. Section 18 and 18A(check
once) (Prithvi raj Chauhan)
iii. Transgender persons protection of rights, 2019- LGBTQ+: + is identified as the
discrimination of the transgender against each other only. Basically + is discriminated
against. LGBTQI+: ‘+’ à keeps increasing, we might see an Amendment of TG Act.
iv. Budget allocation for de-facto allocation of education by 30% for 2019-20. Also there
was increase in welfare spending for SC/ST categories.
v. Zero tolerance against corruption and PCA has been amended in 2018 by India
vi. Guidelines of SEBI- more CSR Amount- Compulsory CSR- Business responsibility and
sustainability report- 65% activities should be CSR- Poverty alleviation, nutrition, health
and education
vii. Civil and Political Rights- Impunity-
viii. Against violence against women and children- Shakti Vahini v. UoI & Tehseen
Poonawalla v. UoI- reduction of impunity against violence against women and children.
ix. Article 15 and Navtej Singh Johar v UoI- Section 377
x. Extra judicial execution victims v. UOI -Offences committed by armed forces- now
they have to be present before civil courts as well. Earlier there were special courts before
whom ONLY they were to appear. Now it appears before both.
xi. 2021- RTE- Budget- 4.38 trillion to 6.75 trillion- increased from 2.8 to 3.5% in Education
including SWAYAM. In SWAYAM
xii. States advance questions to india. They submitted to UNGA before submission of 2022
report
xiii. Rights of children in the online space: education, child pornography, right to access the
internet, etc.
xiv. Social security: Uniform pension scheme that is to be introduced by the Govt. Current
scheme is ageist?
xv. Slovenia Q about ageism à they asked bc they have their own scheme for ageism.

Germany raised 6 questions on India’s Report. 3 important ones:

1. Does the Indian govt. re-consider to amend/revise the AFSPA or not?
2. Reintroducing the communal and targeted violence bill 2011- after the new govt formed- the
bill was never re-introduced
3. Anti-conversion laws and freedom of religion- how will the indian govt react on criticism on
anti-conversion law and undertake steps to review relative laws and right to religion

UK and Northern Ireland’s Qs

1. To protect the interest and right of minorities as guaranteed under Article 29 and Article 30
of constitution
2. Reducing the scope on death penalty- inequalities in the criminal justice system- rarest of
rare cases
3. Convention against torture- is there any plan by INdia to ratify or become a part of
convention against torture
4. What measures are the GOI taking to raise awareness of children’s rights, in particular, in the
online space?
5. What measures is the GOI taking to protect journalists and media from undue influence and
harassment?

Interpretation of HR Treaties
 In treaties, responsibility is between States.
 There are three dimensions of obligations in a multilateral treaty offered by UN is diff from
other regional multilateral treaty à first, obligation to individuals irrespective of citizenship,
second, obligation to other States which are parties and third, obligation to other States (?).
 Reading reservation in Art. 19 VCLT in the context of HR treaties, they are difficult to
justify.
 In general the subject for international law is the state and even in bilateral and multilateral
treaties rights and obligations are created by the state and for the state. Human Rights treaties
on the other hand create obligations of state towards individuals. These may be obligations to
be fulfilled in your territory or even in the territory of other states. The question of extra-
territoriality of obligations comes into the question with regard to VCLT which has no
specific provisions with regard to the same.
 The question then arises that if you don’t follow VCLT provisions is it violation of
international law.
 3 doctrines of international law:

1. Doctrine of backlash/Surgical Applicability

2. Doctrine of severability
3. Doctrine of obligations towards another state
 Special provisions of Article 19(c), 20, 31, 32 and 33 of the VCLT are difficult to apply
when questions of extra-territorial applicability of HR treaties. 06.02.2023

“UN child rights committee lauds Swiss asylum offer to Kurdish family” – 06 February 2023
th

2. Module 2: Implementation of Human Rights Law

Legal Framework
United Nations
 OHCHR: Highest observer body, appointments and other such aspects are implemented as
per UNGA resolutions. The Commissioner is responsible for establishment of mechanisms to
address HR issues.
 Human Rights Council: It is an intergovernmental body constituted on a rotational basis.
There are 47 States that are a part of it. They discuss thematic issues. Before Commission,
now Council through A/RES/16/251. Data Sources:
a. They collect data through Universal Periodic Report from each UN member-State which
is submitted every four years.
b. Advisory Committee functions as a think tank for the Council.
 It has practitioners, academics and students who can do research under this Committee.
 Happens twice a year, composed of 18 independent experts, meet in Feb and August (one
month before HRC meetings).
 Experts are nominated by govt. and then elected by the Council. So if Council does not
accept expertise, the person will not get elected.
c. Complaints by NGOs against their own State. There is s separate complaint procedure.
c. 1503 procedure: A confidential procedure.
c. Composition of member-States: 13 for African States, 13 for Asia Pacific, 8 seats for the
Americas, 7 seats for Western Europe, 6 seats for Eastern Europe. Not eligible for re-
election after 2 consecutive terms but can stand after 2 years. One term is for 3 years.
c. Three subsidiary bodies:

07.02.2023
NEWS: “China: Tibetan children forced to assimilate, independent rights experts fear” – 06th
February 2023.
 ICCPR, CEDAW, CRC, Convention of Migrant Workers, Cruel and Inhuman Treatment,
Disabilities, etc – India is a part of 6 HR treaties and 1 protocol to ICCPR.
st

 25 min documentary on Human Rights which discusses UDHR and other HR instruments.
14.02.2023
NEWS: “United States: UN rights experts gravely concerned over brutal deaths at hands of
police”
Focus on three major doctrines- you are not required to memorise the numbers of the Articles,
just remember the major ones and the Part.

Three major doctrines:

 I. Surgical: Benefits from both sides, State being considered as a party to a treaty and to a
reservation
II. Backlash: State is considered as a party to a treaty but you never get a benefit on
reservations (because of consent). Consent of reservation becomes a party. Not a single
incident has occurred after 1945 where the objecting state has given an option to a reserving
state. This is because this goes against the intention of the UN Charter- everyone is at par
with dignity and sovereignty of the State. ICC Article 120 says that states which want to be a
part of it are not allowed to make any reservation to the ICC. Refer to Article 17 of the
Vienna Convention also.
III. Severability: By respecting consent, the State would be considered a party to the
convention, but not to the reservation. A straight decision can be passed against the reserving
state in spite of reservations being made. In international law, at the time of signing the
treaty, they do not make reservations. Subsequently, they are not allowed to make any
reservations post ratification of the treaty. This is a definition of bindingness of a treaty.
Article 18 of Vienna Convention has 2 clauses and 3 stages- before your declaration/signing
a treaty/ratification, any act committed would not create any obligation. If you sign and don’t
ratify, then the ratification becomes an obligation. Any act of violation, or which creates an
obligation before the State signed a treaty, there was no obligation. After signing but before
ratification, a treaty will be binding in nature. India however, does not consider it binding.
Article 18 says that such a treaty would be binding. Duty of a state is towards all people
living in the whole world- this is called extra-territorial obligation, for example, terrorism,
genocide, etc. Jurisdiction and attribution are two important terms to look for. ICC Section
120, Article 66 of the ICJ Statute are examples of attribution. No international law covers a
state’s territorial jurisdiction; it may be negotiated between two states, but is never decided
by the international tribunal.

15.02.2023

NEWS: “WHO reveals on-third of prisoners in Europe suffer mental health disorders- 14 th

February, 2023)
HR principles applicable: Socialist theory by Salmond (concrete backing by relevant theories and
principles I imp for state to take action)

Regional Mechanism:
Three points by which you can distinguish regional mechanisms (you will not find it online).

Inter-American Mechanism
The Inter-American mechanism- OAS Charter (parliamentary regional level) is the first regional
document, all American states including the Latin American states have accepted, and the
American Convention on Human Rights which has to be read out by the Court when the matter
is decided. Neither the commission, nor the court is sitting as an appellate court for the supreme
court, but only come into picture when the exhaustion of local remedies is concerned. The
Commission is the Inter-American Commission. The court accepts the petitions filed by the
commission, and suo moto the commission can conduct enquiries to collect evidence. The
execution powers however, do not lie with the commission. The court has to submit a report
every year to the OAS. All 47 members of the OAS include all foreign ministers. Cases of
violation and non-enforcement have to be put forth in the report, and the State has to give
reasons for any such non-enforcement.

Article 34 of the ACHR (American Convention on Human Rights)- composition of the

commission- 7 members are there and those members who have been elected by the State have to
be experts in the field (qualification).

Article 36 of the ACHR (American Convention on Human Rights)- they are being elected in a
personal capacity. This is to avoid any conflict of interest which might arise when a matter
pertaining to their state arises.

Article 37(2) of the ACHR (American Convention on Human Rights)- No two nationals of the
same state can be members of the commission.

Imp Points
 Who may file a complaint? Any person, group of people, legally recognised NGOs.

 If you are not satisfied with the decision of the Apex court,

 Admissibility criteria is given under Article 31 and 46 of the Inter American Convention
Procedure- which makes you eligible for filing a petition.

 The limitation period is that you are allowed to go to a commission within 6 months from the
date of the final judgement which you receive from the Apex Court.

 Res judicata and res subjudice- res subjudice is applied and not res judicata in international
law. Article 47 and 46 lay down this proposition.

The commission may refuse to accept the petition on three major grounds-
 If no such ground is mentioned in Article 46
 The facts do not establish a violation of human rights- this is not an admissibility criterion,
but is on merits.
 If it is found to be politically motivated or manifestly GROUNDLESS.

Duty of the court:

 It is a non-permanent, part time body- it is not a full-time job for judges in the Inter
American Court of Human Rights.
  Who may file a complaint? Under Article 61(1), only state parties and the inter-American
commission have a right to submit a complaint, individuals may submit cases to the inter-
American commission.
 Time period- 6 months, admissibility is the same.
 Inquiry procedure- Article 45(4) of the convention.

European mechanism
Europeans have to separate mechanisms- supra national mechanisms- certain states are members
(27 countries) of Council of Europe (Coe) and some which are members (47 countries) of the
European Union (EU), and some are members of both. Both have their mechanisms- there is the
European Court of Justice and the European Court of Human Rights. The EU was formed
because of the coal and steel industries, while the CoE was formed to protect human rights. ECJ
has the power to deal with issues apart from human rights, while the ECHR has limited
jurisdiction with regard to human rights. States which are a party to both have an option to go
before either of the courts- if the issue is purely related to HR, they go to ECHR. If the other
state has not accepted the jurisdiction of the ECHR, the dispute goes to ECJ.

They have a judicial body in the form of a court, it is a full-time job. The composition has 45
judges (a large number).

Admissibility criteria & Mechanism

 Exhaustion of local remedies in one of the criteria for admissibility in a court.
 If a petition is pending for certain period of time, are local remedies exhausted? If a decision
has been passed and the victim is still an aggrieved party, res sub judicata won’t apply. Since
it is only applicable when there is 1. Same cause of action 2. Same parties 3.
 Res sub judice- application pending before domestic court. Local remedy is exhausted.
 But if institution is changed, local remedies not exhausted.
 Mechanism: Article 55(3)
 Who may file complaint? State party/ individual
 Domestic remedies: how commission observes
 Amicus curiae: generally, court receives the brief from AC of the same nationality as the
petitioner
 Friendly settlement

Two IACtHR cases [he’s sent two separate PPTs]

1. Dial et al v. Trinidad & Tobago [based on death sentence]
2. Bissoon v. Trinidad [criminal procedure and conviction]

16.02.2023
 The provisions under a criminal act need to be read out with the State’s obligations and the
punishment for a criminal act should be either a minimum or a maximum punishment. The
gravity of the offence is usually a consideration for awarding an appropriate punishment. The
repetitive nature of the crime is another consideration. In criminal cases, the facts may
 remain the same but the circumstance is never the same- the state of mind of the accused
changes sometimes, resulting in a change in circumstances.
 Once the cross-examination is over, the circumstances change. The circumstances are then
decided by the court- and this leads to the creation of an obligation on the state. Respect,
protect and fulfil are the three obligations created and imposed on the State.
 This is not the case with the common law system- the burden is on both parties therein to
prove their side of the case.

Dial et al v. Trinidad And Tobago:

Violation of the right to personal liberty due to not being informed about the reason for
detention, violation of procedural guarantees due to anomalies during the proceedings, prison
conditions violated right to personal integrity and right to protect family was violated. Refer to
American Convention on Human Rights Articles 1, 2 r/w 4, 5, 6, 7 and 8 have been violated by
the State of Trinidad and Tobago.
Facts: Dial and Dottin along with Messrs were convicted of murder and death penalty was
imposed as a usual punishment for murder.

Merits: Automatic imposition of death penalty, automatic and generalised imposition of the
death penalty, determining the degree of guilt and individualising the sentence (biasness). In the
Indian context, Article 21 in the context of personal liberty shall apply here.

20.02.2023

European court of Human Rights

 Committee decides the admissibility criteria. Four layers: 1 judge committee confirms
admissibility criteria. E.g. not political, limitation, exhaustion of local remedies. Within the
ambit of convention.

 3 judge: can decide on merits

 7 judge chamber: can decide on merits, if not happy with 3 judge decisions.

 17 judge chamber: grand chamber.

 Discussion: artificial intelligence and violation of hr. Can be a question of privacy, data and
others.

3. Module 3: Contemporary Issues

AI in education

During scholarship application for further studies, cv, sop, lor, needs to be submitted. These are
read by software. Based on this eligibility is decided. Is this a violation of her? Scholarship is a
fulfil obligation, means at its discretion. So it is not right. How can you say a scholarship
application is discriminatory at the stage of application itself, not after results?

AI use by law firms

Argument formation, e-discovery. AI doesn't have eq, so this is a probable violation of natural
law principles. Fair trial, right to be heard. Equal opportunity to be heard. When discrimination
takes place, it leads to violation of dignity. If the opportunity to be heard of fair trial is violated,
it harms the right to dignity also. Now everything argued without eq leads to violation of the
right to be heard. Now protection is violated in this case, so right is not being protected.

21.02.2023
Uses of AI
1. Educational institutions – scholarships
2. Law Firms – for internship applications, etc.
3. Adjudication – China is the only state that uses AI for judgements. Indian example is traffic
rules memorandum sent home – he things it is a good thing that India is using AI for small
things such as above and translations from vernacular to English, highlighting provisions of
different acts as mentioned in a document, etc. However, the Supreme Court (or any Court in
India) are inclined towards using AI for adjudicating.

Uses of AI in India
 SUPACE: Supreme Court Portal for Assistance in Courts Efficiency – it, inter alia, extracts
information relating to the laws and provisions applicable to the case.
 IIT Kharagpur Research: AI system to read legal judgements – can help identify the laws
being violated and also help minimise legal costs. It thereafter, also gives legal guidance.
Laws firms in India also use this.
 SUVAS: Supreme Court Vidhik Anuvaad Software – translates English SC judgements into
vernacular languages. The are testing it to ascertain whether the interpretation is changing in
translations since the pronouns, word usage, etc. changes.
 Summarisation of legal case documents: advocates in India.

Issues with AI
 Equal treatment/
 Data security: currently the AI related uses are being outsourced. Therefore, the concern
relating to data security increases.
 Respect for fundamental rights.
 Transparency.
More uses of AI
FIR can be recorded by the AI and thereafter, sent to the homes. For this, the public prosecutor,
the courts and the investigating agencies need to be linked so as for the process to be efficient.
Siliadin v. France
 Interpretation by EU court of Human Rights in this case he likes.
 Applicant, Togolese national – brought to France by relative by her father before the age of
16 and made to work as an unpaid servant. Her passport was confiscated.
 The applicant was made to believe that her immigration status would be regularised soon.
Further details on the slides.
 The national court had held this as not an HR violation and so the matter came to the EUtHR.
 Article 4 – meaning of slavery.
 She was not sent to school despite the promises made to father. Therefore, she was made to
be dependent on the people for whom she worked. Such dependency on someone for a while
is a human rights violation.
 Held: (unanimously) there exists a violation of Article 14.
 “The interpretation in the last 2 slides of this case are extremely important from the
perspective of labour issues in such countries”.

Khasanov v. Russia (Grand Chambers, 29 April 2020) (Extradition)

 3-page summary online “but siddha siddha nai milega”. On the official website – “legal
summary”.
 Information note on Court’s Case law no. 261 of European union.
 Provisions: Article 3 – Extradition and Article 4.
 Ratio: Extradition would not constitute a violation.

06 March, 2023
th

The NHRC simply provides directions and guidelines. NHRC matters go to SC. State HRC
matters go to HC.

4. MODULE 4: International Humanitarian Law [Armed Conflicts]

Introduction

 Also called Law of armed conflict or law of conflicts

 Branch of international law- because without reading international principles, states may not
be able to protect constitutional provisions.

 HL applies when there is a non peacetime situation. When there is an armed conflict, states
are allowed to intervene.

 If the state is using force under Article 51, which says that you can use self defence. It is an
exception for the state to use force.

 State is allowed to use force under article 51, which is a self defence

 If you have this? You can enter into a war or an armed conflict as a state
 A declared armed conflict situation- unless it is not declared? There is no question of
application of IHL.

 IHL comes into the picture only when it is an armed conflict situation.

 Whenever the question about application of IHL arises, the answer is it is only applicable
when it is declared armed conflict situation

 Not the international community nor the hostile state as well

 If the states fail to still provide for this then this gives a green signal tongue international
community to apply IHL against the states who are hostile

 If any person is captured he will be a PoW. His right to dignity survival will be protected by
applying the Geneva convention.

 Jus ad bellum- justification for a state to enter into an armed conflict situation

 Jus in bellum- what IHL exactly is

 The meaning of IHL is that there should be a place of laws where there’s an armed foci
situation. The idea is generated by Henry Dunant. Who is the founder of IHL.

 Around 1859- 2 French colonies were hostile and the person passed by and the idea emerged.

 There must be protection for the non-combatants. Those who are not a part of the hostilities-
why are they being affected

 The second idea was that means and methods which the parties are using at the time of armed
conflict should be restricted and not result in an unnecessary damage or collateral damage

 Hague law- means and methods or weapons used at the time of armed conflict should not
result in collateral damage and unnecessary damage

 These two ideas Henry Dunant had in 1859.

07.03.2023
Armed Conflicts
 Excuses to armed conflict prevention – Article 51 and Article 107
 107 Article – UN charter – Article 2(4) – prohibition of use of force – prevents international
communities from resorting to an armed conflict.
 This is considered as jus in ballum – focus on reasons of war – “declared” armed conflict
situation – only place where IHL can apply.
 It does not matter whether the state allows armed conflict or not for IHL application.
 2 components to be found under the terms of IHL. 2 noble ideas, 1 is a set of Geneva law
(only talks about protection) and the other is a set of Hague Law (restrictions on weapons to
be used during armed conflict):
1. Combatants are subject to protection
2. Means, methods, weapons used during armed conflict should be restricted and should
result into minimum injury to life and minimum suffering and collateral damage.
 IHL finds its own applicability- and states that my provisions apply only when you identify
that the provision applies. Now armed conflict is changing itself- difficult now to categorise
into international armed conflict and a non-international armed conflict. if more than 2 states
are involved, it is an international armed conflict. Recognition by either or both states will
not impact the application of IHL principles.
 Who decides whether a situation is an armed conflict situation or not? Neither a third state,
nor the international community, not the parties to the conflict is entitled to decide. When it
is found automatically that an armed conflict has occurred, an armed conflict occurs. In IAC,
there is no need to check the intensity or threshold of violence occurring. Even if one of the
states involved does not recognise the opposite armed forces’ personnel’s nationality, the
application of IHL would still take place.
 The non-international armed conflict is also called an internal armed conflict. But it is
different from internal disturbance, riots and an internal disturbance of law and order. States
prefer to not call disturbances a non-international armed conflict. This is because States
would not like to appear to lose control over their territories, or for their citizens to be tried
by international fora. The LTTE was the most important example with regard to India (Tamil
Tigers). Two non-state actors may enter into an armed conflict in that territory of that State
which is a high-contracting party to the Geneva Convention. It remains the responsibility of
the state in whose territories these non-state parties have entered into violence.
 There are 3 tests to recognise a non-state actor: they must possess an organised armed force
(there must be a commander who controls the troops, and all members of the troops are under
an obligation to follow the commander), and they should have a capacity to sustain military
operations. They must also have a distinct identity than the civilians. This might be a dress
code also.

Geneva Convention
 4 Geneva Conventions – 3 additional laws = 7 documents to decide matters.
 Sources for Geneva and Hague Law – same as ICJ statute – CIL and opino juris.
 1 Convention – There is a protection for those who are combatants, who are fighting on the
st

battle field.
 2 Convention – Protection of combatants who are fighting on the high seas. “Shipwreck
nd

personnel”.
 3 Convention – at the time of armed conflict, when the parties are captured by the enemy
rd

combatants, the status of POW (prisoners of war) is given to them and they are protected.
The first duty of the capturing state is giving them the status of POW. The are entitled to
basic human rights.
 4 Convention – protection of civilians – subject to protection –civilian or individual or
th

population or civilian property such as hospital schools etc, are protected. Now-a-days
complicated situation where civilians are sometimes converted to combatants. Once they lose
 their civilian status, whether by actively engaging in fighting or financially supporting or by
sharing classified information, etc. they lose their civilian status. Otherwise, they are not
even permitted to be used as a shield.
 1 additional protocols – if the armed conflict is identified to be international in character,
st

only then additional protocol applies. If it is an internal armed conflict or a non-international

armed conflict, it is not applied.
 2 additional Protocol – applied to a non-international armed conflict.
nd

 3 additional protocol – protection of emblems – white background red cross, etc. should not
rd

be misused.

How to recognise International, non-international, internal, internal disturbance (riot

situation) internationalised armed conflict?
 States usually prefers an armed conflict to be a non-international armed conflict. This is
because they don’t want international communities involvement. LTAA – Parbhakar was
never classified as a non-state actor. If you go by the definition of non-state actor, ideally
they should have been recognised as non-state actors.
 There are some confusing situations at the time of armed conflict- about the three principles-
proportionality, military necessity and distinction between military object and civilian object.

International Legal Framework

 ·https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
 Read out slides.

Three fundamental rules

 In any armed conflict, the right to choose methods or means of warfare is not unlimited.
 It is prohibited to deliberately attack the civilian population.
 Distinction must be made at all times between combatants and civilians- attacks are only to
be directed against military objectives.
 One state uses armed force against another, cases of total or partial military occupation even
if no armed resistance, formal declaration of war is not required, views of parties irrelevant,
where a state declares war but no hostilities, includes fights against colonial or racist regimes.

To whom does it apply?

 IHL recognises two categories-
 Combatants- can be attacked and directly participate in hostilities.
 Civilians- are protected. They have a general right to protection against the effect of
hostilities, but cannot participate in hostilities.
 Children are not subjected as a target, even though they are used as combatants by some
militant forces. Religious personnel are subject to protection. Even if they assist and take part
in the hostilities- they cannot legally be combatants. Prisoners of war are also protected.
 Misuse of protected emblems and perfidy (treachery) is prohibited. A white flag indicates a
desire to negotiate and NOT surrender. Relief operations are protected- each party is to allow
rapid and unimpeded passage of medical facilities.
 Military objects can be protected. They are those objects which make an effective
contribution to military action, and whose destruction, capture or neutralisation in the
circumstances offer a definite military advantage.
 Cultural properties under the Hague Convention are protected- they include any place of
cultural values, historical or religious significance, monuments, archives and works of art.
 Works and installations containing dangerous forces are protected- dams, nuclear power
stations and dykes are some examples.
 Civil defence means humanitarian tasks intended to protect the civilian population against the
dangers and hostilities. Indiscriminate attacks are prohibited.

IHL General weapons principles

 Prohibition on weapons which cause superfluous injury or unnecessary suffering
 Weapons incapable of distinguishing between military and civilian objects.
 Prohibition on poisonous weapons and expanding bullets, prohibition of explosive and
flammable ammunition.
 Chemical and biological weapons are prohibited- poisonous and poisonous tipped weapons
are prohibited.
 Incendiary weapons are prohibited against civilian population and civilian objects.
 New weapons: Drone weapons used in Russia Ukraine war. All new weapons used generally
are prohibited by Article 36 of the convention.

International Armed Conflict Situations

 1 type: One side there is a national government entity or armed force personnel vs. another
st

state’s armed force personnel. Both are generally high contracted parties to the GC and in
one of these parties’ territory, the conflict takes place
 2 type: nationals of one state fighting other states’ nationals. 1 state’s nationals against a
nd

group of states’ nationals.

 3 type: one side is govt entities vs. other group states’ govt entities.
rd

 Distinction between war and armed conflict is usually difficult – there is no distinction in
terms of protection – applicability of IHL based on ICRC is based on non-discrimination
policies.
 ATM, there must be an application of IHL the moment a conflict is classified as
international. Since both parties are using arms openly and thereby, are likely to injure
someone, the intensity of the hostility or the conflict is not required to be looked at for
application.
 3 points:
1. In international armed conflict, even if one of the belligerents does not recognise it as an
international armed conflict, the armed conflict will get classified as such and IHL will
apply.
2. Even if the (occupied) territory in which the international armed conflict is not
recognised as a high contracting party to the GC, IHL still applies in case of international
armed conflict. IHL in this case is an obligation and this cannot be used an excuse before
the international tribunals.
3. When from within a group of states participating in the armed conflict, some of them are
not high contracting states, they will still be obligated to apply IHL. E.g. when one state
(who is a part of the high contracting state) hires nationals of other states (who are not a
part of the high contracting states) to fight for them, the IHL will apply. Thus, they are
still entitled to protection. But whether they are obligated to apply IHL otherwise is still a
grey area. An if there is an obligation, is it on their nationality or on the basis of the state
 on behalf of whom they are fighting. Privatisation of military operations is one of the
reasons for such situations.
13.03.2023

Non-International Armed Conflict (NIAC)

by Cecilie Hellestveit (PPT)

Common Article 3 speaks of conflicts, not international by character. It is the only Article in the
Geneva Convention which speaks of non-international conflict. The status of Prisoners of War
will generally not come in here. But if it does, then Article 3 comes into force. Civilians are
being targeted- they are supposed to be protected. All Geneva Conventions have the same
language in Article 3, hence, common Article. Conflicts not of an international character
occurring in the territory of the high contracting state, each party is bound to apply the following
provisions as a minimum-
 persons taking no active part in hostilities including members of armed forces who have
laid down their arms and is hors de combat should not be attacked and should be
protected instead,
 Violations of the right to life, taking hostages, outrage upon personal dignity, passing
sentences and pronouncing sentences should be avoided.
 Wounded and sick should be collected and cared for- this is a responsibility of both the
parties- the non-state actor and the military personnel.
 Special Agreements should be signed to bring effect to provisions of the Convention if
needed.

How these people will be protected- Additional Protocol 2 which provides-

 humane treatment to both parties,
 a person whose liberty has been restricted should be cared for,
 if it has been found wounded and sick or ship-wrecked personnel, they have to be searched,
protected and cared for
 religious and cultural persons should be protected, so should medical personnel,
 religious sentiments should not be disturbed,
 medical transport units should be protected
 no civilian population is supposed to be protected, their movement should not be restricted.
But they are killed- not just to kill them, but to spread terror and fright.

In these cases, the other party is a non-state actor and hence, have not signed the convention and
are NOT bound by the Convention. They are not obliged to follow the convention. Minimum
protections written in Article 3 have to be followed by non-state actors’ armed personnel also.

India has Geneva Convention Act- Section 3 provides life imprisonment or death sentence to
persons found guilty- the trial would be according to the Geneva Convention. In the Protocols,
only protections are granted. In every State, there is a Geneva Convention domestic law. The
trial occurs before the military tribunals under the Convention, but in NIACs, the trial is before
domestic courts.
The Rules of international law differ for international and domestic armed conflict. Rules of
NIAC include basic norms or principles. Differences with IACs decide whether it is NIAC or
not.

Civil war is one group of civilians versus another. State remains silent and support of state to one
group of civilians is presumed. American Civil War (1861)- Latin Americans did not want to be
joined with the USA.

War against civilians: Turkey- armed forces were fighting one group of civilians

14.3.2023
NIAC Contd.
 NIAC exists when there is armed conflict between two organised parties where at least one is
NOT a State.
 Several conflicts can exist side by side: ICJ in Nicaragua v. US
 NIAC v. IAC: State v. group of states
 NIAC: 1) occurring in the territory of the party 2) not of an international character 3) armed
conflict [GCart3]
 NIAC is protracted armed violence between govt authorities and non-state actor. Protracted
means of a longer duration.
 Common article 3 says that NIAC would be in the territory of high contracting party.
 Protocol 2 says that non-state actors must have occupied the territory. Otherwise, P2 will not
apply only GCart3 will apply.
 Distinction in application of Common Article 3 and Additional Protocol 2 is the
territorial control of high contracting parties. When we identify a situation as NIAC, we read
Common Article 3 and Additional Protocol 2 equally. If the non-state actors have not
occupied territories of the high contracting parties, Additional Protocol 2 will not apply. Only
Common Article 3 shall be applicable. Either you read Common Article 3 and Additional
Protocol 2 together or you read them individually.

 When there is a non-state actor v. national armed forces and third state assistance to
non-state actors, this will be a NIAC. The major dominant party is the third state, this is not
a situation of NIAC, but is an IAC. There is a test- whether the third state has control over
the armed forces of the non-state actor or not- if yes, it is IAC. Definition of NIAC is that one
of the parties should NOT be a State. If there are two parties and one of them is not a State, it
is NIAC. Examples of conversion of IAC to NIAC are Iraq and Afghanistan, and examples
of NIAC to IAC are Lebanon (2006) and Georgia.

 There are two tests: Yamashita’s case is a command-responsibility case. If the command is
from a nationality of a third state, it means that there is effective control of the third state
over the non-state actors. Yamashita was a Japanese national- who was sitting thousands of
miles away and he had given command to three commanders on field- crimes against
humanity were committed. He contended that since he was not present, there was no control
 and he was unable to communicate with the commanders. The US Military said no, you are
responsible since you had overall effective control over the troops. Command structure is
essential to decide who is responsible to what extent.

NIAC Examples:
1. Israel- Hizbullah (2006)
 Hizbullah, a non-state actor with territorial control in Southern Lebanon, fired rockets
at Israeli border towns. Israel responded by air strikes into Lebanon. Lebanese
authorities responded by stating that they will not intervene in the face of such blatant
aggression and destruction. Not taking any action is supporting the actors.
 If Lebanese govt intervenes and non-state actor withdraws from the conflict, it will
turn into IAC since NIAC requires at least one party to be non-state actor.
 It was non-state armed conflict. Common Article 3 – NIAC is in the territory of the
high contracting state. Protocol 2 applies
2. Gaddafi regime v. Benghazi insurgents: NIAC
3. Gaddafi regime v. international coalition of states was IAC.

14.03.2023
NIAC Examples continuation:
4. Tadic 1995 – protracted: means for a longer duration – if the state is involved in hostilities
with non-state armed personnel on one side – non-state armed conflicted
Note: Classification may change during the conflict as well. Depends on who ends up supporting
whom. Eg non-state actor against a state – Lebanon supports non-state actor – then it is a non-
state action. If Lebanon supports a state actor – it is still NIAC. But if the non-state actor
withdraws but Lebanon and the other state are now parties left in the conflict – it becomes IAC
not NIAC.

5. Israel-Palestine
NIAC since Palestine is not recognised as a state. This is not a situation of right to self-
determination since while both armies are fighting, one of them is not recognised as a state.
ICRC is therefore, working on humanitarian ground and not because NIAC is there or the IAC is
there. Since the armed conflict is in the state of one of the high contract states, the ICRC is
getting involved period. NIAC is getting triggered because it is a conflict between one state and a
non-state actor. Therefore, the influx of refugees in the state is much. (his sentences are not
making sense). This is not a right to self-determination situation because citizens are not only
ones involved. There are organised group. Further, this conflict is not considered as an armed
conflict situation in the first place. If only civilians were there, NIAC would immediately be
triggered and further, it may become a right to self-determination situation.
6. Georgia and South-Ossetia – ‘irregular armed forces’ – definition discussed before – even
if Russian army supported the non-state party, it does not change the fact that there is still a
non-state party involved making it a NIAC.
7. Iraq 2004 – ‘alongside’ – definition discussed –
Today we cannot say that an organisational structure is necessary – this is because today
civilians get involved by themselves without any organised structure.

16.03.2023

DO NOT DILUTE YOURSELF FROM ACADEMICS. I NEVER CROSS MY TERRITORIAL

JURISDICTION ALSO.

 Objective assessment: reason for conflict is irrelevant, opinion of parties not decisive,
formalist approach
 Westphalian order
 Point of departure: Non-state or state?

 If there is a lower threshold or an upper threshold, it needs to be checked only in NIAC. In

IAC, Article 2 of the Geneva Convention I-IV applies to the situation. There are situations
where internal operations by security forces reach a high threshold. Even in this, it may not
reach the status of an NIAC. Lower threshold is basically a nodal point to decipher whether it
is an NIAC or an IAC. NIAC has a very low threshold of violence, which may not be the
case in an IAC. Any intervention between the armed forces of States will be an IAC. Even if
it is 0 threshold and they are terrorising to each other (HAHAHAHAHA) and not entering
into violence, it will be an IAC due to the involvement of two or more States- any
intervention between their armed forces will be IAC- physical or otherwise- interfering with
their sovereignty will be IAC.
AFSPA is not a NIAC, it is merely a law and order situation in Kashmir. It is a peace-time
situation, but the threshold will be high if there is action or violence on both sides.

 Common Article 3: On territory of State between state and non-state actors: High threshold
of violence: Police and anti-terror operations, internal disturbances and tensions- if found,
and police officials can control the situation without having armed resistance, it will be an
internal disturbance. Additional Protocol II Article 1(2) will be relevant. At a higher level of
violence, there may be insurgency and protracted armed violence on behalf of an
organisation. Whether still it will be a NIAC or merely an internal disturbance? In those
circumstances, where the intensity and casualty is high, it will generally be an NIAC
according to IHL. But if the state’s interpretation is that they do not need armed forces to
control the situation, it will be considered to be an internal disturbance. Attack on the Indian
Parliament was an armed force v. terrorist group- this was an internal disturbance and not a
NIAC.
 Lower threshold: If threshold is outside the territory of the State? If it is on the border, no
State can establish their sovereignty. Drone attacks in Pakistan between the Central
Intelligence Agency and Pakistani Taliban.

20.03.2023
Short forms used by sir in class
GC: Geneva Convention; GC III- Geneva Convention dealing with PoW; GC I: Geneva
Convention No.1 which deals with armed force personnel fighting on land; GC II: Geneva
Convention No.2 which deals with personnel fighting on high seas; GC IV: Geneva Convention
No.4 which deals with protection of civilians on land and on high seas in case piracy occurs; AP:
Additional Protocol No.1 which says that protection listed under the Additional Protocol I would
apply when there is an IAC; ICRC receives a mandate form the international community saying
that you are allowed to enter into the battlefield and take care of the injured; DPH: direct
participation into hostilities.

 Urbanisation of armed conflict: in NIAC, the prosecution immunity would not be given to a
non-state actor. In NIAC, if you are not protected by the Geneva Convention under the name
of PoW, then what is the benefit or advantage or entitlement of the non-state actors once they
are captured.
 Responsibility of sick and wounded is generally that of ICRC but there is an argument that
the State in whose territory it is has the responsibility. The reason this is necessary if bc
under latter, POW status but not if collected by ICRC. GC 3(2), APII Art 7 (collected after
engagement: Art 8).
 Debate: If NSA become wounded and sick but State collects them then what happens? GC
says you still have to protect IHRL but AP does not say you have to give POW status, it only
applies to State actors.
 APII Art. 14: Prohibition of starvation of civilians. But IHL per se does not expressly
mention starvation as an illegal method of warfare during non-intl armed conflict situation.
Starvation is bound to happen in urban areas. Read starvation prohibited under IHL as acting
only when the person has POW status. Not a general prohibition. Unless you are a
combatant, you may not necessarily be given POW status. So here right against starvation
may not immediately come into effect. Another example is when the person is a civilian as
they assisted a military personnel.
 AP 13(1): Protection of civilians from dangers arising from military operations à practically
impossible to protect, no express aspect on anticipation which may cause mental trauma. So
spreading terror by giving wrong messages and threatening warnings do not come under
injury.
 Prosecution (imp from exam POV): DPH and non-state actors do not have prosecutorial
immunity. Once you are a civilian and you commit a war crime, you lose immunity. Art. 6(2)
APII.
 When a civilian takes arms and assists a military personnel, if they are captured they will
only receive protection under GC4 because at the time they take up arms, they will be a
legitimate target. But once captured, the DPH becomes a civilian only. So they are illegal
 combatant at the time they took up arms. At that point in time, killing them is not a war crime
bc they are legitimate target.
 Why is the entitlement source (G3 and GC4) imp? GC3 allows repatriation at the end of the
war but under GC4 the handing over of civilians as soon as they are captured. So GC4 is
actually advantageous.

Means and Methods of Warfare

 Incidental loss of civilian life and damage to civilian objects is not lawful à there is a slight
debate wrt urban warfare. Incidental loss is bound to happen realistically. It is different from
collateral damage. Collateral damage is also prohibited but again this is also bound to take
place.
 Difference b/w collateral damage and incidental damage: Collateral damage includes both
civilian and military life and objects but incidental only focusses on civilian aspects. If
anticipated military advantage is not being gained, GC has been violated. This is tested based
on the principle of distinction à if this principle not applied, then classification as collateral or
incidental damage.

21.03.23
 “customary law” – ‘controversial’ – it’s not even controversial according to him it doesn’t
apply only.

Military objects can be attacked [Article 52(2)]

 Ideally military objects can be attacked without violating the provisions of IHL.
 However, this does not mean that you can unnecessarily attack military objects.

Medical Services
 Medical and religious personal are protected.
 Medical persons have immunity.
 4 points:
1. Permanent medical staff: only they are protected. But in certain situations there may be
people who do not have medical qualifications but are still providing medical services.
The question is how to treat them; as civilians or as medical personnel. The answer is that
even if you do not have medical qualifications, but you have an ID Card, they are allowed
to enter into the battlefield and are protected as medical personnel. The criteria is having
a badge, ID, etc. Thus, here, ‘permanent’ means someone having an ID Card.
2. Medical equipment: those who are carrying medical equipment from one place to another
using a medical vehicle (ambulance, etc.). Misuse – using medical equipment for non-
medical uses – chemicals etc.
3. Medical transports: ‘misuse bohot hota hai isme’. Similar to emblem protection, medical
transports have logo, etc. The misuse happenes where the medical vehicles carry arms
and ammunitions or are used to attack, etc.
 4. Medical establishments: almost same as hospital zones.
5. Hospital zones and localities: some hospitals are civilian hospitals. They are also subject
to protection. There is no bifurcation as such between civilian or combatant hospitals but
if you attack a more civilian-populated hospital, that will be considered a direct civilian
attack?
Perfidy
 Perfidy (treachery) and misuse of protected emblems is prohibited. Perfidy is defined in AP I,
different than Rule 57 of ICRC: it states that acts inviting the confidence of an adversary to
lead him to believe that he is entitled to, or obliged tp accord, protection under the rules of
international law applicable in armed conflict, with intent to betray that confidence. The
essence is to obtain and then breach an adversary’s confidence, i.e., an abuse of good faith.
 you are deceiving the opposite party by making them believe that something is not going to
be attacked by the military when it actually will be. Definition in the ICRC slides. Complete
prohibition.

Ruses of war (Rule 57)

 The lighting of large fires away from the true target area for the purpose of misleading the
enemy aircraft into believing that the large fires represent damage from prior attacks and thus
leading them to a wrong target. Target marking flares may be used to mark false targets. It is
unlawful to fire false target flare indicators over residential areas of a city or town which are
not otherwise valid military objectives.
 similar to perfidy but different. E.g., misleading enemy into believing that a particular area
has already been attacked so that they do not attack it. This is lawful ruse. This is where
perfidy and ruse differs. While perfidy is completely prohibited, ruses may be lawful. In
majority of the cases in fact, ruses of war are lawful.

Relief operations
 Neutrality in terms of protection of those who are wounded has to be adhered to.
 Irrespective of which side the wounded belong to, whether civilian or combatant, safe
passage for treatment must be allowed.
 Misuse: in the name of protection of emblems, there is misuse.
 5 provisions for protected relief operations: Articles 23, 59-61, 110-11.
 GC IV: Articles 23, 59-61, 110-111: Each party to the conflict will allow rapid and
unimpeded passage of medical and hospital stores, even to the civilians of the other party to
the conflict. Only in rare circumstances, of imperative military necessity, can such activities
be restricted.

Cultural Objects
 Cultural value, historical with religious significance, monuments, archives and works of art.
 There are emblems for this in the slides (normal and special protection).
 Provisions: Hague Convention, 1954 (14 May 1954). Since it does not talk about civilian
protection, the Hague Convention applies instead of the Geneva Convention.
 Cultural property includes places of cultural value, historical or religious significance,
monuments, archives or works of art. Protection of works and installations containing
dangerous forces- AP I, 1977: Article 56

Dangerous Forces
 Provisions: Additional Protocol I, 1977, Article 56.
 Dams, dykes and nuclear generating stations may be protected.
 Urban warfare – power/ electricity stations are also protected even if they are being used by
both civilian and military. The moment they are used by civilians, they are classified as
essential services.

Civil Defence
 Provisions: Additional Protocol I, Articles 61-67.
 Not trained defence personnel.
 If trained – protection under Articles 1 (land), 2 (high seas), 3 (captured) and AP I (only a. If
not trained, protection under GC, 4 (civilians) either AP I or II. AP II is usually not
applicable since civilian personnel getting involved in IAC does not arise because you have
international societies such as Red Cross etc. plus otherwise also civilian defence personnel
are not involved.
 Whether they are combatants or not – the reason is they are not trained. That being said, you
can say they are not entitled to enter the battlefield.
 The general rule is that civilians are not entitled to enter the battlefield. This provision is the
exception.
 Civil defence means those humanitarian tasks intended to protect the civilian population
against the dangers of hostilities and to help recover from the immediate effects of hostilities
or disasters, and to provide the necessary conditions for survival- AP I: Articles 61 to 67

Indiscriminate Attacks Prohibited

 Provision: Article 52(2).

22.03.2023
 Re-emphasizing diff bw GC and Hague law: GC only deals w protection against adverse
hostilities and covers both civilian and military persons and objects. No sanctions provided
for. Hague law only speaks about diff conventions on prohibition of use of weapons
(chemical weapons, etc) during armed conflict.

Perfidy
 AP I defined perfidy as acts inviting the confidence of an adversary to lead him to believe
that he is entitled to, or obliged to accord, protection under the rules of IL applicable in
armed conflict, with intent to betray that confidence. This act is prohibited. Examples of
perfidy: In case of emblem, misuse and perfidy are different.
 Similar definition u/ Rule 57 ICRC called ruses of war. Leading to a wrongful target is a
lawful ruse. Unlawful to attract attention to those which are not valid military objectives.
 Protected: Relief Operations:
a. There is a distinction in definition of child: 15 (GC: Art. 77 of AP 1) and 18 years (IHL).
But in any case, attacking children is prohibited.
b. Use of child soldiers as human shields: More than punishment, the prohibition is against
attack of that child. No GC talks about prohibition of use of children as human shield.
This is something he is criticizing.
c. Ex: Under Hague law, the person who attacked the child will create obligation rather than
the person who used the child as a shield in the first place.
d. Status of those children bw 15 to 18: Question. Exploited by Chinese to recruit 15-18
years old, and they don’t actively participate. They are used as human shields. So kind of
a loophole.
e. Rules:
 Prohibition of use of children to take direct part (implies recruitment can exist but
their use is what is prohibited);
 Prohibition of compulsory recruitment of children into armed forces;
 Same into armed groups.
 Protection of cultural property: refer back to previous discussion in class.
 White flag indicates desire to negotiate, not to surrender. Misuse of the white flag may
amount to be considered as ruse or perfidy if there is an attack from behind after showing
white flag.

General and Specific IHL Weapons Rules

 Check PPT for prohibitions and the source of prohibition.
 Art. 35(2) AP II: Bound even if the weapon itself doesn’t cause superfluous injury but its
deployment causes à still under this prohibition
 Incendiary weapons also prohibited.
 Case Study: Grdelica Railroad Bridge (Kosovo)

28.03.23
Responsibility for failing to act during a NIAC
 Geneva Convention and Additional Protocol II makes no mention of criminal responsibility
on the part of hierarchical superiors for breaches committed by their subordinates, the
essentials of non-state actors’ matters. One essential is hierarchy or a command structure. If
there is a non-state actor but there is no hierarchy, Geneva Convention IV will apply. It
should be noted that the principle of responsible command within armed groups is one of the
terms of application of Additional Protocol II.
 National criminal legislations provide for holding superiors responsible criminally for all war
crimes done by the subordinates, regardless of whether the armed conflict is international or
non-international. DPH would be followed (Geneva Convention).
 In NIAC, the superiors are responsible under IHL, and this responsibility applies to all crimes
submitted to the tribunal. Read the slides for legislations and their names: Article 4 of the
ICTR grants tribunal the powers to decide violations of Article 3. Rule 153 of the ICRC
statute is applicable to NIAC.

Post WW-II
Article 86 of Additional Protocol II deals with failure to act. Superiors will be liable if they knew
or had information which should have enabled them to conclude in the circumstances at that
time, that their subordinates were committing or were going to commit a breach of IHL. They
should take all feasible measures to prevent and repress these breaches. The following provisions
may be referred to:
 ICTY Art 7(3) and 6(3)
 ILC Draft Code Art. 6
 ICC (Rome) Statute Art. 28A
 ICC Statute Art. 28B

06.04.23
 Article 36 says that any weapons used which create a mass destruction or injuries to the life
of civilians and combatants is responsible. This is nothing expressly written but is managed
by military tribunals.

Situation based approach of an ad-hoc tribunal

 Principle of IHL: belligerent parties must at all times distinguish between the civilian
population and the combatants, and between civilian objects and military objectives, and
must direct their operations only against military objectives.
 There is guerrilla warfare, whether it is allowed by the Geneva Convention? The Convention
does not speak about this warfare. The civilians take arms in this warfare and then provide
assistance to their military persons. They are not entitled to a licence to kill others like the
military personnel. What is the status of those persons who are guerrilla? They are trained
sometimes and not trained otherwise. Spain is a territory where guerrilla warfare was started
in 1908 and today, in Ukraine, there is guerrilla warfare and they are spontaneously taking
arms and ammunitions- the opposition knows they are civilians and do not attack them, but
these civilians carry arms and kill the combatants. The term spontaneous is very important.
 Ukraine war is likely to see growing guerrilla warfare, it is increasing day by day.
 What is guerrilla warfare? This is used for sabotage as their main intention- this relates with
IHL principles also. It is also used for ambushes (surprise attacks from a hidden position and
attacks on persons and properties or against isolated enemy posts). These tactics are
characterised by mobility, surprise and prompt disengagement. They provide advantage of
knowledge of the natural environment and the sympathy of the local population. It is waged
by small widely scattered formations fighting superior forces whose flanks and rear they
attack at unsuspected and unexpected places and times.
 Sabotage refers to the action taken to destroy or damage material, works or installations
which by their nature or purpose add to the efficiency of the enemy’s armed force. In military
 terminology, it is preferable to term the acts committed against one’s own army as sabotage
and those against the other military forces as destruction.
 Whether the use of sabotage against the enemy is legitimate or otherwise depends on:
category of persons committing it, target and the means and methods used.
 In international armed conflict, only combatants may commit such acts of sabotage and no
person who does not have a combatant status can commit sabotage lawfully. Only
combatants, members of resistance movement and participants in a levée en masse
(spontaneously taking up arms to resist) may commit acts of sabotage.
 Levee en masse: distinction from guerrilla warfare is that this is to resist while guerrilla
warfare is to attack. British levee en masse in 1793 in France. This is used to describe the
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 to form themselves into a regular
armed unit, provided they carry arms openly and respect laws and customs of IHL. These
IHL rules will never be respected in guerrilla warfare.
 Sabotage is the work of individuals and small formations operating in enemy controlled
territory and taking advantage of clandestinely, surprise and uses of war. This includes great
precision and generally does not harm civilians. Therefore, guerrilla warfare is not lawful
according to IHL.
 Principle of distinction has to be followed. It entails a duty to prevent erroneous

Prohibited Weapons
1. Use of anti-personnel mines – traditional, orthodox way.
Develop, produce, aquire – similar to prohibition on use of warfare, manufacturing units ,etc.
also prohibited.
2. Booby Traps & Manually Emplaced Munitions
3. Incendiary (causing fire) weapons
 Prohibited (unless it is military).
 Only if there is a direct attack on the civilian population it is prohibited.
4. New Weapons
 AP 1, Art. 36
 Includes automatic and automated weapons.
 E.g. Ukraine and Russia – the weapons being used fall under this Article.
 It includes all new weapons that may be used in the future is well.
 Rationale behind provision is that if a weapon is not stated in the AP then the grey area may
result in parties to the war from using them.

Reprisals
 Article 51(6).
 Part of unnecessary suffering and therefore prohibited.

Terror Attacks
 Terror attacks are not the terrorist acts – it refers to unnecessary mental trauma/ playing with
the minds of the people.
 This is prohibited it has nothing to do with terrorism.
 Article 51(2)

Civilians as Human Shields

Pillage, Looting, etc.

 Sometimes, when the ICRC is collecting the bodies of the deceased, valuable articles on their
bodies may be stolen.
 This is prohibited as it amounts to Pillage or looting.

Starvation
 Article 54
 2 things we had seen

11.4.23

Article 3, AP II
 Frequent in Ukraine these days – civilians are being trained to protect cities if Russia
attacks.
 GC does not speak about civilians being trained since they are considered as unlawful
combatants.
 The moment civilians are trained, it does not make them a legal combatant and you do
not have the license to kill someone else. Therefore, you remain a civilian – protection u/
Art 4 and DPH.

Human Shields

Unnecessary destruction
 If there is a military establishment/ property but does not have any military personnel or
ammunitions, etc. they are not subject to attack the reason being that there is no military
advantage to be gained from destroying it. Therefore, it falls under the category of
unnecessary destruction of property.

Reprisal
 Prohibited – tit for tat is prohibited.
 Violation by opposite party does not allow you to violate.
 Exception: dual-use objects.

Unprivileged combatant
  Different from unlawful combatants.
 DPH civilian does not fall under this category – you are not unprivileged.
 Civilian who is captured would be tried under domestic law not GC like a military
combatant – this is because a civilian is not a lawful combatant.
Principle of precautions
 Warning and time was given to vacate a place. The place was not vacated by the military
forces. Thereafter, the attack was made. Is this a valid justification?
 Yes. If you have given a warning and sufficient time, it works for the military advantage
thingy.
Civilian Property
 Civilian property can be used as military uses.
 However, for perfidy it is not allowed.

Case Study
Background Facts
 NATO accidentally bombed a railroad bridge.

Questions
How do we characterize the NATO Action?
 Direct hostilities.
 NIC
What parts of IHL are applicable here?
 Geneva Convention: since protection is the crux here.
What IHL Principles are relevant?
 Explain situation r/w distinction.
 Military necessity.
 Unnecessary suffering.
Means and methods used
 Protocol IV.
 Give justification.

Responsibility
State Responsibility
 2 layers: (i) traditional layer of laws regulating co-existence and cooperation between
members of the international community; (ii) a new layer consisting of law of community of
law consisting 6 billion human beings.

Individual Responsibility
 Individual responsibility of a commander at the time of an armed conflict.

13.04.2023
Precautions in attack and presumptions in case of doubt
IHL says that since the Geneva Convention stops a combatant from attacking in cases of doubt,
he should refrain from attacking. Perfidy means to restrict and protect himself from attack, and
not to initiate attack.

17.04.2023
Indiscriminate weapons
 Customary IHL establishes that there is a violation of Geneva Convention or a Hague Law.
This point does not include the technological weapons that are being used- automated,
automatic weapons etc. where human beings are not in the loop.
 Indiscriminate weapons includes technological weapons and also not technological ones (Art.
36 AP I). Hague Law does not have specific convention to prohibit state parties from using
the weapons. No definition of indiscriminate weapons as results of using the weapons is what
decides whether there is a violation as a result of impact.
 CCW convention: Manufacture prohibited under IHRL and use during conflict is IHL.
 ICRC relies on customary IL based on Rome Statute and military manuals which prohibit use
of indiscriminate weapons.
 Specifically regulated weapons: Means is not prohibited but method can be prohibited if it
results in unnecessary sufferiing (ex: poison tipped weapons, etc). No definition of poison or
poisoned weapons. ICJ definition is when exclusive effect is to poison or asphyxiate. Hague
Law allows, GC you have to prove.
 Exploding and expanding bullters: 400g or more bullets.
 Non-detectable fragments: No specific prohibition but if effects are dangerous general IHL
prohibition on fragments will kick in. Rationale is non-detecbale fragments are difficult to
treat but have no military utility sometimes.
 Booby traps: read w principle of humanity and military necessary. Read properly from PPT.
 Landmines: Not prohibited.
 Incendiary weapons: Read PPT. Determine IHL violation based on the impact.
 Rule 85 of CIHL: Anti personnel use of incideniary weapons prohibited unless no other
option left.
 Laser systems.

25.04.2023

5. Answer Writing Pattern

 Intermediate level of questions not like arbitration.
 He wants precise answers within the word limit, do not cross it.
 He really does not want philosophy, very practical examples.
 5 marks: 300-350 words, 7 marks: 400-450 words, 10 marks: 700 words.
 There will be 7-8 questions of a very lengthy nature, he will cover at least 50%.
 Options are very unlikely. He might give but not very sure.
 Answer pattern: Theory will be more difficult bc he wants all the provisions.