Comprehensive Outline: International Humanitarian Law (IHL)

1. Origins and Evolution of International Humanitarian Law (IHL)

 Historical Roots:
o Early customs of war: chivalry, religious codes (e.g., Islamic law, Just War
Theory).
o Codification efforts: Lieber Code (1863) and the Declaration of St. Petersburg
(1868).
 Key Developments:
o Formation of the International Committee of the Red Cross (ICRC) (1863).
o Adoption of the first Geneva Convention (1864).
o Hague Conventions (1899, 1907): Addressing rules of warfare.
o Expansion post-WWII: Geneva Conventions (1949) and Additional Protocols
(1977, 2005).
 Modern Developments:
o Customary International Humanitarian Law (CIHL).
o Addressing non-state actors and asymmetric warfare.
o Incorporation of environmental considerations.

2. When Does IHL Apply?

 Armed Conflict:
o International Armed Conflict (IAC): Conflicts between states.
o Non-International Armed Conflict (NIAC): Conflicts involving non-state actors
within a state.
 Situations Outside IHL:
o Does not apply to internal disturbances, riots, or isolated violence.
o Distinction from law enforcement governed by International Human Rights Law
(IHRL).
 Triggering Factors:
o Determined by intensity of conflict and organization of the parties.

3. Fundamental Principles of IHL

 Principle of Distinction:
o Differentiating between combatants and civilians.
o Prohibition of direct attacks on civilians and civilian objects.
 Principle of Proportionality:
 o Prohibits attacks causing excessive civilian harm relative to the military
advantage.
 Principle of Military Necessity:
o Permits only necessary force to achieve legitimate military objectives.
 Principle of Humanity:
o Prohibits unnecessary suffering and superfluous injury.
 Principle of Non-Discrimination:
o Equal protection under IHL for all affected persons, regardless of nationality,
race, or allegiance.

4. Relationship Between IHL and International Human Rights Law (IHRL)

 Overlap and Differences:

o IHL: Applies during armed conflict; focuses on protecting victims of war and
regulating conduct of hostilities.
o IHRL: Applies in peacetime and during conflict; focuses on individual rights.
 Complementarity:
o Both aim to protect human dignity.
o Some IHRL provisions are non-derogable (e.g., right to life, prohibition of
torture).
 Tensions:
o Enforcement mechanisms differ (e.g., courts under IHRL vs. military tribunals
under IHL).
o Balancing state security and human rights during emergencies.

5. Sources of IHL

 Primary Sources:
o Geneva Conventions (1949):
 GC I: Protection of the wounded and sick in armed forces in the field.
 GC II: Protection of wounded, sick, and shipwrecked armed forces at sea.
 GC III: Treatment of prisoners of war (POWs).
 GC IV: Protection of civilians during wartime.
o Additional Protocols (1977, 2005):
 AP I: Enhances protections in IACs.
 AP II: Focuses on NIACs.
 AP III: Addresses use of the Red Crystal as a protective emblem.
 Secondary Sources:
o Customary IHL.
o International case law.
o Resolutions and declarations of international organizations.
6. Other Conventions Regulating Means and Methods of Warfare

 Weapons Prohibitions:
o Biological Weapons Convention (1972).
o Chemical Weapons Convention (1993).
o Convention on Certain Conventional Weapons (1980).
 Environmental Considerations:
o ENMOD Convention (1976): Prohibits environmental modification for warfare.
 Cluster Munitions and Landmines:
o Ottawa Treaty (1997): Bans anti-personnel landmines.
o Cluster Munitions Convention (2008).
 Nuclear Weapons:
o Treaty on the Prohibition of Nuclear Weapons (2017).

7. Occupation and IHL

 Definition:
o Occupation occurs when a state exercises effective control over a territory without
sovereignty.
 Key Rules:
o Governed by Geneva Convention IV and Hague Regulations (1907).
o Obligations to protect civilian populations, maintain order, and respect property.
 Contemporary Examples:
o Israeli occupation of Palestinian territories.
o Russian control over parts of Ukraine (e.g., Crimea).

8. Enforcement of IHL

 Rome Statute of the International Criminal Court (ICC):

o Established in 1998 to prosecute war crimes, crimes against humanity, and
genocide.
o Jurisdiction includes grave breaches of IHL.
 Other International Tribunals:
o Nuremberg and Tokyo Trials (Post-WWII).
o International Criminal Tribunal for the Former Yugoslavia (ICTY).
o International Criminal Tribunal for Rwanda (ICTR).
 National Implementation:
o States’ responsibility to incorporate IHL into domestic law.
o Examples: Pakistan’s Geneva Conventions Act (1936).
9. Case Study: The Kashmir Dispute

 Context:
o Territorial conflict between India and Pakistan over the region of Jammu and
Kashmir.
o Involves armed conflict, occupation, and alleged human rights abuses.
 IHL Implications:
o Applicability of Geneva Conventions to the armed conflict.
o Allegations of disproportionate force, attacks on civilians, and use of pellet guns.
 Humanitarian Concerns:
o Violations of protections for civilians under Geneva Convention IV.
o Challenges in ensuring accountability for actions by state and non-state actors.
 International Response:
o UN reports highlighting violations of IHL and IHRL.
o Calls for independent investigations into alleged war crimes.

Conclusion

International Humanitarian Law, grounded in principles of humanity and justice, remains critical
in moderating the effects of armed conflict. Despite challenges in enforcement and compliance,
IHL’s framework, supported by treaties like the Geneva Conventions and mechanisms like the
ICC, serves as a vital tool in safeguarding human dignity during war. Case studies, such as the
Kashmir conflict, underscore the ongoing relevance and complexity of applying IHL in modern
disputes.