Applicability of IHL:

Contemporary
Challenges
M. A. M. Hakeem
Senior Lecturer & Attorney at Law
Department of Public & International Law
Faculty of Law, University of Colombo
 Outline
• Introduction: Concept of IHL
• Contemporary Sources of IHL
• Scope of Application
• Binding Obligations of IHL
• Enforcement of IHL
• Contemporary Armed Conflicts
• Contemporary Challenges
• Concluding Remarks
• Discussion
 Concept of IHL
• IHL is a set of rules: established by treaties or
customs, which are specifically intended to
solve humanitarian problems directly arising
from international or non-international armed
conflicts.
• IHL seeks to mitigate the effects of war: it
limits the choice of means and methods of
conducting military operations; it obliges the
belligerents to spare persons who do not or no
longer participate in hostile actions
 Contemporary Sources
▪ International law: Jus ad bellum and jus in bello
– Jus ad bellum are the international rules
pertaining to which extent the use of military
force against another state is allowed.
– Jus in bello are the international rules pertaining
to how armed conflict must be conducted
• Geneva Law
• Hague Law
• Customary Law
• Case Law
• Emerging Jurisprudence
 Geneva Law
• The four Geneva Conventions (1949):
1. Wounded and sick soldiers on land
2. Wounded and sick soldiers on sea
3. Prisoners of war
4. Protection of civilians and occupation

• The two Additional Protocols (1977):

Additional rules on means and protection
1. In international armed conflicts
2. In non-international armed conflicts
• Third Protocol on Emblem
 Hague Law

• The St. Petersburg Declaration 1868

• Hague Regulations of 1899 and 1907
• Gas protocol of 1925
• NPT (non-proliferation of nuclear weapons) 1968
• Biological weapons 1972
• Convention on inhuman weapons (CCW) 1980
• Chemical weapons 1993
• Anti Personnel Mines 1997
• Cluster Munitions 2008
 Customary Law

• ICJ Statutes, Article 38(1).b: “…international custom, as

evidence of a general practice accepted as law;”
– Usus and opinio juris

• The ICRC Study on IHL

was commissioned by
State Parties to the GCs in 1995
• Three volumes in 2005:
– 1) The rules (161 rules)
– 2 and 3) State practice
 Scope of Application
• PERSONAL scope of application (to
which subjects does IHL apply?)
• MATERIAL and TEMPORAL scope of
application (in which situations does
IHL apply?)
– Material: To which situations?
– Temporal: When does the applicability
start and end?
 Personal Scope of Application:
• To which subjects do IHL apply?
– Who is bound by IHL?
– Who is protected by IHL?
• States (parties to the conflict and to IHL
instruments)
• Non-state armed groups (parties to the conflict)
• Individuals (belonging to parties to the conflict):
– Civilians and other protected persons (soldiers hors de
combat) (have rights and obligations)
– Combatants (have rights and obligations)
» Distinction between combatants and non-
combatants
• International organisations
 Material Scope of Application
1) International armed conflict and
occupation
2) Non-international armed conflicts:
2.1) Wars of national liberation
2.2) Civil war
2.3) Other non-international armed conflicts
**********************************************
3) Internal disturbances not amounting to
armed conflict
4) Peace
 Temporal Scope of Application
• When does the applicability of IHL
begin?
– The moment of the first hostile act that
puts at stake a provision in IHL
• When does the applicability of IHL
end?
– The end of military operations
• But when is this???
 Threshold: Application of IHL
• Must first characterise the conflict /
hostilities by asking:

1. Is it an Armed Conflict?
2. If so, is it an International Armed
Conflict (IAC) or an Non-
International Armed Conflict (NIAC)?
Armed Conflict v. Riots/Disturbances
• Not defined in GC
• State vs. Individual
• Broad view taken?
• Domestic laws apply
• Isolated clashes N/S?
• Human Rights apply
• Length of conflict & amount
of death N/A • Police agencies
• State vs. State • Criminal laws apply
• Armed Forces & Dissident • Emergency measures
Groups • Martial Law
• IAC and NIAC
 International Armed Conflicts
See definition in GC Common Article 2:
• One State uses armed force against another
• Cases of total/partial military occupation (even if there is no
armed resistance)
• Formal declaration of war is not required
• Views of the Parties are irrelevant
• Where a State declares war but no hostilities

See also definition in AP I Article 1.4:

• Includes fights against colonial domination, alien occupation &
racist regimes (exercising self-determination)
• AP I supplements the GC
• Customary law applies to fill in the gaps (Martens clause –
Article 1.2)
 Non-International Armed Conflicts
• Defined as a confrontation between the existing
governmental authority and group(s) of persons
subordinate to this authority

• See definition in GC Common Article 3

• See also definition in AP II, Article 1

• Compare the thresholds for application of each

 International vs. Non-International
• Geneva Conventions • GC Common Article 3
• Additional Protocol I • Additional Protocol II
• Customary Law rules • Customary Law rules
• International treaties • International treaties
– IHL weapons treaties – Torture Convention
– ICC Statute – Genocide Convention
– Torture Convention – CCW/CPC
– Genocide Convention – Human Rights treaties
– Human Rights treaties • ICC Statute
• Hague Conventions • War Crimes
• ICC Statute • CAH
• War Crimes • Genocide
• CAH
• Genocide
 Binding Obligations of IHL
• IHL binds all actors to an armed conflict:
➢ In international conflicts it must be
observed by the States involved; whereas
➢ In internal conflict it binds the
government, as well the groups fighting
against it or among themselves,
➢ Thus, IHL lays down rules that are
applicable to both State and non-State
actors
 Are individuals also bound
under IHL?
• IHL imposes obligation on individuals and also
provides that persons may be held individually
criminally responsible for “grave breaches” of
the Geneva Conventions and of Additional
Protocol I, and for other serious violations of
the laws and customs of war (war crimes)
• IHL established universal jurisdiction over
persons suspected of having committed all such
acts
 Enforcement Mechanisms: IHL

• Role of High Contracting Parties to

“ensure respect…” (no reporting procedures)
• Dissemination and training
• Monitoring (ICRC) – Guardian of IHL
• International criminal law bodies
• Role of INGOs and NGOs
 Contemporary Armed Conflicts
• Contemporary armed conflicts and of their humanitarian
consequences, and thus of the operational reality in which
challenges to IHL arise.
• The adequacy of existing IHL to protect the victims of
contemporary armed conflicts.
• The four areas of IHL in which humanitarian concerns are not
adequately addressed by existing IHL and where IHL should
therefore be strengthened
✓ protection of detainees,
✓ protection of internally displaced persons and
✓ protection of the environment in armed conflict, and
✓ protection the mechanisms of compliance with IHL.
 IHL and Multinational Forces
• Under UN auspices or under UN command
and control, has grown increasingly broad and
has come to include dimensions such as conflict
prevention, peace-keeping, peace-making, peace-
enforcement and peace-building
• IHL could be applicable to multinational forces
was disregarded earlier.
• It was often contended that multinational
forces, in particular UN forces, could not be a
party to an armed conflict, and consequently
could not be bound by IHL
 Private Military and Security Companies
(PMSCs)
• The issue of the legitimacy of the outsourcing of such
functions and on whether there should be limits on
the right of states to transfer their “monopoly of
force” to private actors.
• PMSCs clients are not only states; international
organizations, non-governmental organizations and
transnational business corporations have contracted
their services as well, and
• It cannot be excluded that multinational military
operations or armed opposition groups hire PMSCs
to fight on their behalf in the future
 New Technologies of Warfare
• IHL applies to new weaponry and to the employment
in warfare of new technological developments, as
recognized, inter alia, in article 36 of Additional
Protocol I.
• Remote controlled weapons systems such as drones
are increasingly being used by the parties to armed
conflicts.
• Automated weapons systems are also on the rise, and
certain autonomous systems such as combat robots
are being considered for future use on the battlefield
 Cyber Operations
• Operations against or via a computer or a computer
system through a data stream.
• Infiltrate a system and collect, export, destroy,
change, or encrypt data or to trigger, alter or
otherwise manipulate processes controlled by the
infiltrated computer system.
• By these means, a variety of "targets" in the real
world can be destroyed, altered or disrupted; the
potential effects such as industries, air traffic control
systems, oil pipeline flow systems or nuclear plants,
infrastructures, telecommunications, or financial
systems.
 Miscellaneous Challenges in IHL
• Phenomenon of terrorism
• DPH
• Transnational conflicts
• Notion of illegal combatants
• Unclear interface/overlap between IHL &
IHRL
• International Cooperation and Collective
action
• Geo-political / regional policies
 Concluding Remarks

• Many challenges to applying and

ensuring respect for IHL
(conceptual, normative, procedural,
and institutional):
• Changing nature of conflicts:
Nature of armed conflict and
Fluctuation of the situation/s
 Concluding Remarks
• Different interests and approaches by the
parties to the armed conflict
• Technological challenges and others:
• Privatization and automatization of armed
conflict
• Cyber warfare
• Failure to address root causes in a systematic
manner.
Thank you