INTERNATIONAL HUMANITARIAN LAW MIDTERMS OUTLINE

WEEK 1- WHAT IS INTERNATIONAL HUMANITARIAN LAW (IHL)?

International humanitarian law (or “law of armed conflict” and “law of war”) regulates relations
between States, international organizations and other subjects of international law.

It is a branch of public international law that consists of rules that, in times of armed conflict, seek
– for humanitarian reasons – to protect persons who are not or are no longer directly participating
in the hostilities, and to restrict means and methods of warfare.

In other words, IHL consists of international treaty or customary rules (i.e. rules emerging from
State practice and followed out of a sense of obligation) that are specifically meant to resolve
humanitarian issues arising directly from armed conflict, whether of an international or a non-
international character.

TWO BRANCHES OF IHL

a) The law of Geneva, which is the body of rules that protects victims of armed conflict, such
as military personnel who are hors de combat and civilians who are not or are no longer
directly participating in hostilities.

b) The law of the Hague, which is the body of rules establishing the rights and obligations of
belligerents in the conduct of hostilities, and which limits means and methods of warfare.

TWO UNDERLYING PRINCIPLES OF IHL

a) The principle of military necessity permits only that degree and kind of force required to
achieve the legitimate purpose of a conflict, i.e. the complete or partial submission of the
enemy at the earliest possible moment with the minimum expenditure of life and resources.
It does not, however, permit the taking of measures that would otherwise be prohibited
under IHL.

b) The principle of humanity forbids the infliction of all suffering, injury or destruction not
necessary for achieving the legitimate purpose of a conflict.

ESSENTIAL RULES/ PRINCIPLES OF IHL

a) Principle of distinction between civilians and combatants

The parties to the conflict must at all times distinguish between civilians and combatants in
order to spare the civilian population and civilian property. Neither the civilian population as
a whole nor individual civilian may be attacked. Attacks may be made solely against
military objectives. Parties to a conflict do not have an unrestricted right to choose methods
or means of warfare. Using weapons or methods of warfare that are indiscriminate is
forbidden, as is using those that are likely to cause superfluous injury or unnecessary
suffering.

b) Principle of precautions against the effects of the attacks

The parties to the conflict must take all feasible precautions to protect the civilian
population and civilian objects under their control against the effects of attacks.

Examples: construction of shelters, digging of trenches, distribution of information and

warnings, withdrawal of the civilian population to safe places, direction of traffic, guarding
of civilian property and the mobilization of civil defense organizations are measures that
 can be taken to spare the civilian population and civilian objects under the control of a
party to the conflict.

c) The principle of proportionality

The principle of proportionality limits and protects potential harm to civilians by demanding
that the least amount of harm is caused to civilians, and when harm to civilians must
occur it needs be proportional to the military advantage. It prohibits attacks when the
civilian harm would be excessive in relation to the military advantage sought. This is an
area of hostilities where we often hear the term ‘collateral damage’.

For example, direct attacks against civilians are prohibited and hence a proportionality
assessment is not a relevant legal assessment as any direct attack against even a single
civilian who is not taking part in hostilities is a clear violation of IHL. Proportionality is only
applied when a strike is made against a lawful military target.

d) The prohibition of attacks against those hors de combat

The prohibition to attack any person hors de combat (those who are sick and wounded
prisoners of war) is a fundamental rule under IHL. For example, while a solider could be
targeted lawfully under normal circumstances, if that soldiers surrenders or is wounded and
no longer poses a threat, then it is prohibited to attack that person. Additionally, they may
be entitled to extensive protections if they meet the criteria of being a Prisoner of War.

e) The prohibition on the infliction of unnecessary suffering

While IHL does permit violence, it prohibits the infliction of unnecessary suffering and
superfluous injury. While the meaning of such terms is unclear and the protection may as
such be limited, even fighters who may be lawfully attacked, are provided protection by this
prohibition. One rule that has been established based on this principle is the prohibition on
the use of blinding laser weapons.

MARTENS CLAUSE

The exact meaning of the Martens clause is disputed, but it is generally interpreted like
this: ‘anything not explicitly prohibited by IHL is not automatically permissible’. Belligerents
must always remember that their actions must be in conformity with the principles of
humanity and the dictates of public conscience.

WHAT ARE JUS AD BELLUM AND JUS IN BELLO

Jus ad bellum refers to the conditions under which States may resort to war or to the use of
armed force in general. The prohibition against the use of force amongst States and the
exceptions to it (self-defence and UN authorization for the use of force), set out in the
United Nations Charter of 1945, are the core ingredients of jus ad bellum (see the box titled
“On the Prohibition against War”).

Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is
synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by
protecting and assisting all victims of armed conflict to the greatest extent possible.

THE “RESPONSIBILITY TO PROTECT” OR “R2P”

It is a principle which seeks to ensure that the international community never again fails to
act in the face of genocide and other gross forms of human rights abuse.

The principle stipulates that:

 1. States have an obligation to protect their citizens from mass atrocities;

2. The international community should assist them in doing so; and,

3. If the state in question fails to act appropriately, the responsibility to do so falls to that
larger community of states.

Such action can take various forms: diplomacy, humanitarian measures or other peaceful means;
it can also, as a last resort, involve the use of force, but only after the UN Security Council’s
authorization.

WEEK 2

WHEN DOES IHL APPLY?

IHL applies only in situations of armed conflict.

It offers two systems of protection: one for international armed conflict and another for non-
international armed conflict.

International armed conflict (IAC)

IACs occur when:

a) One or more States resort to the use of armed force against another State.

b) An armed conflict between a State and an international organization is also classified as an

IAC.
c) Wars of national liberation, in which peoples are fighting against colonial domination and
alien occupation and against racist regimes in the exercise of their right of self-
determination.

Non-international armed conflict (NIAC)

Many armed conflicts today are non-international in nature. An NIAC is an armed conflict in which
hostilities are taking place between:

a) The armed forces of a State and organized non-State armed groups; or

b) Between such groups.

Note: For hostilities to be considered an NIAC, they must reach a certain level of intensity
and the groups involved must be sufficiently organized.

COMMON ARTICLE 3

Requirements to apply:

(1) armed conflicts not of an international character; and

(2) Occurring in the territory of one of the High Contracting Parties.

Example: armed conflicts in which one or more organized non-State armed groups are
involved. NIACs may occur between State armed forces and organized non-State armed
groups or only between such groups.
ADDITIONAL PROTOCOL II

Requirements for application:

(1) Takes place in the territory of a High Contracting Party;

(2) Between its armed forces and dissident armed forces or other organized armed groups
which; and
(3) Territory is under the command and such group exercises control over a part of said
territory as to enable them to carry out sustained and concerted military operations.

Note: It introduces a requirement of territorial control, by providing that

organized non-State armed groups must exercise such territorial control “as
to enable them to carry out sustained and concerted military operations and
to implement this Protocol.”

Additional Protocol II does not apply to armed conflicts between organized non-State armed
groups.

SIMULTANEOUS EXISTENCE OF IAC AND NIAC

In certain situations, several armed conflicts may be taking place at the same time and within the
same territory. In such instances, the classification of the armed conflict and, consequently, the
applicable law will depend on the relationships between the belligerents.

Consider this hypothetical example. State A is involved in an NIAC with an organized non-State
armed group. State B directly intervenes on the side of the organized non-State armed group.
State A and State B would then be involved in an IAC, but the armed conflict between State A and
the organized armed group would remain non-international in character. If State B were to
intervene on the side of State A, both State A and the organized non-State armed group and State
B and the organized non-State armed group would be involved in an NIAC.

WHAT LAW APPLIES TO INTERNAL DISTURBANCES AND TENSIONS?

Internal disturbances and tensions (such as riots and isolated and sporadic acts of violence) are
characterized by acts that disrupt public order without amounting to armed conflict; they cannot be
regarded as armed conflicts because the level of violence is not sufficiently high or because the
persons resorting to violence are not organized as an armed group.

IHL does not apply to situations of violence that do not amount to armed conflict. Cases of this
type are governed by the provisions of human rights law.

WEEK 3- PROTECTED PERSONS IN ARMED CONFLICT

ICRC E-briefing on Sexual Violence in Armed Conflic