International Humanitarian
Law/IHL
“…Soldiers may only be fought as long as they
themselves are fighting. Once they lay down their
weapons , ‘they again become mere men’ and
hence their lives must be spared.” Rousseau
Chapter 1: Introduction to IHL
Concept & purpose of IHL
• War is, basically, prohibited under existing
international law.
• The exception is the right of every State to
defend itself against attack.
• Yet weapons are suddenly made to speak.
How? Do you think that war need law?
Why?
Cont’d
• IHL is mainly concerned with the fate of those
who are not taking part in the conflict.
• It sets forth a set of rules which seek to limit
the effects of armed conflict (i.e. it obliges the
belligerents to spare these persons).
• It protects persons who are not or no longer
participating in the hostilities and restrict the
means and methods of warfare.
Cont’d
• IHL is a part of international law, which is the
body of rules governing relations between
states.
• What makes it different is that it is applied
during armed conflicts.
• But it does not regulate whether a state may
actually use force. This is regulated by UN
Charter.
• Does IHL encourage/legitimize war?
Cont’d
• IHL is also known as law of armed conflict or
law of war.
• The Purpose of IHL
• It ensures peaceful relations between and/or
among peoples by promoting humanity in time
of war.
• It aims to prevent or at least to hinder
mankind’s decline to a state of complete
barbarity.
Historical Development and Philosophy
of IHL
• The idea of controlling of war is said to be as
old as war itself.
• It has survived and is alive and well in the
world today.
• Consequently, killing became differentiated:
murder and war
• Brotherhood and harmony …
• Competitiveness and aggression …
Cont’d
• The historical development of IHL can be
divided into different stages:
• 1st stage-- 'early plan for peaceful order‘
• 2nd stage…‘arms control’ movement or
disarmament
• 3rd stage… arbitration
• Disarmament & arbitration were both major
preoccupations of the Hague Conferences of
1899 and 1907.
Cont’d
• The next stage is the post-world war II
circumstance.
• The UN is a post-1945 circumstance which
makes a big mark.
• The law of war has since then, between 1945
and 1980, gone through a second phase of
‘reaffirmation and development’.
• It is much more concerned than it had ever been
before with the protection of ‘civilians’.
Cont’d
=> Powerful lords and religious figures, wise
men and warlords from all continents …
=> Henry Dunant
• He have built the intellectual foundation for
the rebirth of IHL in the 19th century.
• ‘A Memory of Solferino’
• He was deeply shocked by the absence of any
form of help for the wounded and dying.
Cont’d
• Accordingly, proposed two practical measures
calling for direct action:
1. An international agreement on the
neutralization of medical personnel in the
field. => 1st Geneva Convention (1864)
2. The creation of a permanent organization for
practical assistance to the war wounded.
• The Red Cross
JUS AD BELLUM Vs. JUS IN BELLO
• Jus ad bellum
• It is international law regulating the resort to
force or legality of the use of force.
• Jus in bello
• It is IHL or Humanitarian rules to be respected
in warfare
• Thus, Jus ad bellum provides rules regarding
when a State may or may not use force.
Cont’d
• Whereas jus in bello provides rules dealing with
various aspects of the conduct during armed conflict,
in particular on:
how to protect persons who do not or no longer take
part in hostilities (wounded, sick, shipwrecked
combatants and fighters; captured combatants and
fighters; and civilians),
what means and methods of warfare may or may not
be used, and
the rights and obligations of neutral States.
Cont’d
• Today the use of force between states is
prohibited by a peremptory rule of
international law.
• This has made the jus ad bellum to change into
a jus contra bellum.
• What are exceptions of this rule? Or in
what circumstances is war considered as a
legitimate conduct?
Cont’d
• The exceptions are:
• Individual and collective self-defense,
• Security Council enforcement measures, and
• Probably national liberation wars (to enforce
the right of peoples to self-determination)
Scope of IHL
• It is applicable in international armed
conflicts.
• When there is an armed conflict, the
international law of peace … superseded by
the rules of IHL.
• But the international law of peace will
continue to be of great importance, particularly
for the relationship between the parties to a
conflict and neutral states.
Cont’d
• A declaration of war is not necessary for the
application of humanitarian law.
• I.e. its application is not dependent on a
formal declaration of war that nowadays occur
only occasionally.
• Its application also does not depend on
whether an armed conflict has been started in
violation of a provision of international law.
Cont’d
• Armed conflict can be either of the following:
1. International armed conflict
2. Non-international (internal) armed conflict
3. Internationalized armed conflict
• Today, there are two instruments which
expressly apply to non-international armed
conflicts.
• These are Common Art.3 … & AP II
Cont’d
• Common Art. 3 of the Geneva Conventions
It contains a series of rudimentary provisions
dealing with minimum rights and duties such as
those hors de combat be treated humanely & the
wounded and sick be collected and cared for,
the prohibition against murder, torture,
humiliating & degrading treatment, & summary
executions.
• Additional Protocol II: a far more detailed code
Sources of Contemporary IHL
• Treaties are the major sources of IHL.
• The main sources are the four Geneva
Conventions of 12 August 1949 .
• The First Geneva Convention
Convention for the Ameliorations of the
Conditions of the Wounded and sick in Armed
Forces in the Field.
Cont’d
• The Second Geneva Convention
Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea;
• The Third Geneva Convention
Convention relative to the Treatment of Prisoners of
War;
• The Fourth Geneva Convention
Convention relative to the Protection of Civilian
Person in Time of War
Cont’d
• These four Geneva Conventions have also been
supplemented with the two Additional Protocols
of 8 June 1977.
• Additional Protocol I
relating to the Protection of Victims of
International Armed Conflicts
• Additional Protocol II
relating to the Protection of Victims of Non-
International Armed Conflicts
Cont’d
• International customary laws also constitute
the source of IHL. Some of the circumstances
in which customary rules are applicable are:
Regarding issues not covered by treaties,
When non-parties to a treaty are involved in a
conflict,
Where reservations have been made against
the treaty rules
Cont’d
• Taking an overall view of all practice it can,
for instance be found that a rule of the two
1977 Additional Protocols corresponds today
to customary law binding on all states and
belligerents, because it codified previously
existing general/customary international law.
Fundamental Principles of IHL
• Persons hors de combat and those who do not
take a direct part in hostilities are entitled to
respect for their lives and physical and moral
integrity.
• It is forbidden to kill or injure an enemy who
surrenders or who is hors de combat.
• The wounded and sick shall be collected and
cared for by the party to the conflict which has
them in his power.
Cont’d
• Captured combatants and civilians under the
authority of an adverse party are entitled to
respect for their lives, dignity, personal rights
and convictions.
• Everyone shall be entitled to benefit from
fundamental judicial guarantees.
Cont’d
• Parties to a conflict and members of their
armed forces do not have an unlimited choice
of methods and means of warfare.
• Parties to a conflict shall at all times
distinguish between the civilian population
and combatants to spare the civilian
population and property.
• What is the difference between IHL & HRL?
IHL vs. International Human Rights Law
• Human Rights law is valid in all circumstances,
at all times. Except the case of emergency
situations.
• That means human rights agreements contain
general rules applicable at all times.
• But the protective rules and mechanisms of IHL
are applicable only in time of war.
• A further specificity of IHL is the fact that its
provisions govern relations with the enemy.
Cont’d
• Human rights agreements, however, affect
above all the relationships between the
authorities and citizens of the same State.
• Thus, IHL has not taken all the basic rights &
freedoms guaranteed under human rights
agreements.
• Rather it turned them into protective
conditions in time of war.
Cont’d
• But the treaties of humanitarian law contain
sections which are foreign to human rights
texts, such as the rules on the use of weapons.
• Another possible difference is that IHL contains
many more rules requiring the individual or the
community to act than classic human rights law.
• Example, “Wounded or sick combatants, to
whatever nation they may belong, shall be
collected and cared for”.
Chapter Two
Combatants and Civilians
• Who is Combatant?
• Combatant refers to all members of the armed
force with the exception of the medical and
religious personnel.
• Membership of the armed forces is an
indispensable prerequisite to combatant status.
• Why do we bother whether a person is
combatant or not? Prisoner of war
Cont’d
• They must fulfill certain set of conditions:
They must be commanded by a person
responsible for his subordinates;
They need to have a fixed distinctive emblem
recognizable at a distance;
They have to carry arms openly; and
They have to conduct their operations in
accordance with the laws and customs of war.
Cont’d
• Who is Civilian?
• Civilians are persons who are not members of
armed forces.
• Civilians are immune from a direct attack
unless they take a direct part in hostilities.
• Civilians are not protected against attack when
they take a direct part in hostilities.
Cont’d
• Thus, according to governing rule of IHL, the
parties to the conflict must at all times distinguish
between civilians and combatants.
• Attacks may only be directed against combatants
and attacks must not be directed against civilians.
• Combatants also have a duty to distinguish
themselves from the civilian population while
they are engaged in an attack or in a military
operation preparatory to an attack.
Cont’d
• This is the norm of customary international
law applicable in international armed conflict.
• A combatant who fails to distinguish himself
from civilian will lose his right to prisoner-of-
war status.
• Being a prisoner of war entitles more
favorable treatment in accordance with the
Fourth Geneva Convention.
