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Structure of the current lecture
1. Introduction to the course
2. Introduction to international humanitarian law
1. International law
2. Jus ad bellum and jus in bello
3. Brief history of IHL
4. Main sources of IHL
5. Scope of application
3. Qualification of conflicts
1. International armed conflicts and occupation
2. Non-international armed conflicts
INTRODUCTION TO THE
COURSE
Practical course information
• JUS5730 International humanitarian law (the
law of armed conflict)

http://www.uio.no/studier/emner/jus/jus/JUS5730/index.xml

• Autumn 2012:
– Time and place for teaching and exam
– Syllabus (achievement requirements)
– Course outline; style of teaching
– Student participation?
Useful websites
• Treaties: http://www.icrc.org/ihl
• Commentaries:
http://www.icrc.org/ihl.nsf/CONVPRES?OpenView
• Other useful links:
– ICRC Review: http://www.icrc.org/eng/review
– ICRC databases on IHL: http://www.icrc.org/eng/resources/ihl-
databases/index.jsp
– Harvard IHL Research initiative: http://ihl.ihlresearch.org
– Introduction to Public International Law research:
http://www.nyulawglobal.org/Globalex/Public_International_La
w_Research1.htm
– Central Human Rights Sources on the Internet:
http://www.jus.uio.no/smr/tjenester/bibliotek/veiledning/human-
rights-sources.pdf
INTRODUCTION TO INTERNATIONAL
HUMANITARIAN LAW
Terminology and related areas of international law:

• International Humanitarian Law (IHL)

• Law of Armed Conflict (LOAC)
• Jus in bello

• International Human Rights Law

• International Refugee Law
• International Criminal Law
International humanitarian law as a
part of international law
• Traditionally: International law regulates the relationship
between States
• States are the core subjects of international law; states
have rights and obligations
• But individuals can to a certain extent be subjects (duty-
bearers and rights-holders) under international law
– International humanitarian law a good example
• International humanitarian law is a part of international
law
– Sources, methods, implementation, enforcement...
– But with some special characteristics
– Students without previous knowledge of international law are
encouraged to familiarise themselves with textbooks on
international law, in addition to Kolb’s short introduction
Sources in international law
Statute of the ICJ, Art. 38:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
(b) international custom, as evidence of a general practice
accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
Method of interpreting treaties
Vienna Convention on the Law of Treaties

Art. 31. General rule of interpretation.

1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.

Art. 32. Supplementary means of interpretation.

Recourse may be had to supplementary means of interpretation, including
the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable
Jus ad bellum and jus in bello

• Jus ad bellum are the international rules

pertaining to to which extent the use of
military force against another state is
allowed.
– Not a key issue in this course
Jus ad bellum
The prohibition against use of force:
• UN Charter Article 2 (4): The use or threat of use
of force against states is prohibited
• ICC Statute: Crime of aggression

The only exceptions:

• UN Security Council resolution (UN Charter
Articles 39 – 42)
• The right of self defence (UN Charter Article 51)
• Humanitarian intervention/responsibility to
protect (R2P)?
Jus in bello
• Jus in bello are the international rules
pertaining to how armed conflict must be
conducted

• Protection of civilians and individuals hors de

combat
• Protection of combatants
• Means and methods of warfare
• Relationship to neutral states
No direct link

• Violations of jus ad bellum does not

justify violations of jus in bello
• Violations of jus ad bellum does not
entail violations of jus in bello
 Brief history of IHL
• Many examples of humanitarian rules of warfare
throughout history (and many examples of the
opposite): Use of poisoned or concealed weapons,
killing of prisoners etc.

The origins of modern IHL:

• The battle of Solferino (1859)

– Henri Dunant: “The Memory of Solferino” (1862)
• The first Geneva Convention 1864
• The Lieber Code 1863
Core principles of IHL
HUMANITY

Proportionality Distinction

Military necessity
Main Sources of IHL

• “Geneva law”
Conventions
• “Hague law”

• International customary law

Geneva Law (primarily pertaining to
protection)
• 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
Hague Law (primarily pertaining to means
of war)
• 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
International 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
international humanitarian law
was commissioned by State
Parties to the Geneva
Conventions 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 to be
discussed later
• 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?
QUALIFICATION OF
CONFLICTS
International conflicts and
occupation
• IHL applies in international armed conflict or
during occupation
• What is an international armed conflict?
– When the armed forces of one state uses armed force
against another state
• What is occupation?
– When the armed forces of one state occupies territory
outside its own territory
– Hague Convention IV, annex, art. 42: “Territory is
considered occupied when it is actually placed under
the authority of the hostile army.”
Common Article 2, GC
• In addition to the provisions which shall be
implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any
other armed conflict which may arise between two or
more of the High Contracting Parties, even if the
state of war is not recognized by one of them.

The Convention shall also apply to all cases of

partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets
with no armed resistance.
Non-international armed
conflict
• IHL applies, to a certain extent, in non-
international armed conflicts
– When there is a situation in a state that amounts
to an armed conflict, IHL applies

• What is a non-international armed conflict?

NIAC # 1: Wars of national liberation
• Additional Protocol 1 to the Geneva Conventions makes IHL
applicable to certain non-international armed conflicts
• Article 1(3) and (4):

(3) This Protocol, which supplements the Geneva Conventions of

12 August 1949 for the protection of war victims, shall apply in
the situations referred to in Article 2 common to those
Conventions.
(4) The situations referred to in the preceding paragraph include
armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist régimes in
the exercise of their right of self-determination, as enshrined in
the Charter of the United Nations and the Declaration on
Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter
of the United Nations.
NIAC # 2: Civil war

• Civil war is an armed conflict between the

state authorities of a state and an organised
armed group with control over parts of the
state territory
• Additional Protocol II applies
Article 1, AP II
• 1. This Protocol, which develops and supplements
Article 3 common to the Geneva Conventions of 12
August 1949 without modifying its existing conditions
of application, shall apply to all armed conflicts …
which take place in the territory of a High Contracting
Party between its armed forces and dissident armed
forces or other organized armed groups which,
under responsible command, exercise such control
over a part of its territory as to enable them to carry
out sustained and concerted military operations and
to implement this Protocol.
NIAC # 3: Other non-international
armed conflicts
• Non-international armed conflicts which do
not reach the threshold of:

– AP I, Article 1 (4): peoples fighting colonial

domination etc.
– AP II, Article 1: civil war between state military
forces and organised armed forces in the territory
of the state
 Threshold IACs / NIACs

Suggested preparatory reading: M. Milanović, «What Exactly

Internationalizes an Internal Armed Conflict?», http://www.ejiltalk.org/what-
exactly-internationalizes-an-internal-armed-conflict/
Common Article 3, GC:

• In the case of armed conflict not of

an international character occurring
in the territory of one of the High
Contracting Parties, each Party to
the conflict shall be bound to apply,
as a minimum, the following
provisions:
 The Martens Clause
• “Until a more complete code of the laws of war has
been issued, the High Contracting Parties .. declare
that, in cases not included in the Regulations adopted by
them, the inhabitants … remain under the protection and
the rule of the principles of the law of nations, as they
result from the usages established among civilized
peoples, from the laws of humanity, and the dictates
of the public conscience”.

• Hague Convention IV: “Convention (IV) respecting the Laws and Customs of War
on Land and its annex: Regulations concerning the Laws and Customs of War
on Land”. The Hague, 18 October 1907.
Internal disturbances
• IHL does not apply.
• Article 1, AP II:
• 2. This Protocol shall not apply to situations
of internal disturbances and tensions, such
as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as
not being armed conflicts.
• What is the threshold?
Peace

• IHL does not apply

• With certain exceptions regarding the use of
the Red Cross/Red Crescent emblem,
placement of military buildings etc.
De facto situations Applicable IHL:
1. INTERNATIONAL ARMED CONFLICT PLUS GC Common Art. 2
OCCUPATION AP I, Art.1

2. NON-INTERNATIONAL ARMED CONFLICT: GC Common Art. 2

2.1 Wars of national liberation AP I, Art.1

2.2. Non-international armed conflict (Civil war) AP II Art.1

between the state and organized group with territorial
control
2.3. Other non-international armed conflict GC Common Art. 3
between the state and groups or between groups

3. Disturbances Not IHL

Riots/Unrest
Disasters
Others causes for state of emergency
4. Peace Not IHL
Qualification of situations

• Never assume that any substantive IHL rule

applies before having made the
determination of what kind of situation you
are dealing with.
• If in doubt about how to categorise the
situation, always assume that the regime
giving the most protection is applicable (and
explain why you do this).
 Contact information:

Kjetil Mujezinović Larsen

Associate Professor, the Norwegian Centre for Human Rights

Phone: +47 22 84 20 83
E-mail: [email protected]