Definition of IHL

 Also called the “law of war” or “law of armed conflict.”

 A branch of public international law regulating relations during armed conflicts.

 Aims to:

1. Protect individuals not participating (or no longer participating) in hostilities.

2. Restrict means and methods of warfare.

 Composed of:

o International Treaty Law: Agreements between states (e.g., Geneva

Conventions).

o Customary Rules: Practices accepted as legally binding.

Key Principles of IHL

1. Distinction:

o Differentiate between civilians and combatants, and civilian objects vs. military
objectives.

o Attacks should target only military objectives.

2. Proportionality:

o Incidental civilian harm must not exceed the anticipated military advantage.

3. Precaution:

o Constant care to spare civilians during military operations.

Branches of IHL

1. Law of Geneva:

o Protects victims of armed conflict (e.g., wounded soldiers, prisoners of war,

civilians).

2. Law of The Hague:

 o Regulates the conduct of hostilities (e.g., rights/obligations of belligerents, limits
on warfare methods).

Jus ad Bellum vs. Jus in Bello

 Jus ad Bellum:

o Governs the right to go to war.

o Prohibited under UN Charter Article 2(4), except for:

1. Self-defense against aggression.

2. UN Security Council authorization.

 Jus in Bello:

o Governs conduct during armed conflict.

o Applies to all parties regardless of the conflict's cause.

Balancing Military Necessity and Humanity

 Military Necessity:

o Allows use of force necessary to achieve legitimate military goals.

 Humanity:

o Forbids unnecessary suffering or destruction.

Seven Fundamental Rules of IHL

1. Protect individuals not participating in hostilities (e.g., civilians, hors de combat) and
treat them humanely.

2. Forbidden to kill or harm an enemy who surrenders or is hors de combat.

3. Provide care to the wounded and sick; protect medical personnel and facilities.

4. Respect the dignity and rights of captured combatants and civilians.

5. Guarantee fundamental judicial rights; prohibit torture or degrading treatment.

6. Limit methods and weapons of warfare to avoid unnecessary suffering.

 7. Distinguish between civilians and combatants to avoid targeting civilians.

Prohibited Means and Methods of Warfare

 General Prohibitions:

o Causing unnecessary suffering.

o Using weapons that:

 Spread terror among civilians.

 Fail to distinguish between combatants and civilians.

 Cause long-term environmental damage.

 Specific Prohibitions:

o Poison/poisonous weapons.

o Chemical and biological weapons.

o Dum-dum bullets (exploding inside the body).

o Incendiary weapons (e.g., designed to burn objects/people).

o Anti-personnel mines and cluster munitions.

 Prohibited Methods:

o Denying quarter (not allowing enemies to surrender).

o Starving civilians.

o Pillaging private property.

o Using perfidy (e.g., faking surrender to attack).

Key Treaties and Instruments in IHL

Treaties Protecting Victims of Armed Conflict:

1. First Geneva Convention (1949):

o Protects wounded and sick combatants, medical personnel, and facilities.

2. Second Geneva Convention (1949):

 o Extends protection to shipwrecked combatants.

3. Third Geneva Convention (1949):

o Protects prisoners of war (POWs).

4. Fourth Geneva Convention (1949):

o Protects civilians, including those in occupied territories.

5. Additional Protocol I (1977):

o Covers victims of international armed conflicts.

6. Additional Protocol II (1977):

o Covers victims of non-international armed conflicts.

7. Additional Protocol III (2005):

o Introduced the red crystal emblem.

Treaties Restricting Weapons:

1. 1925 Protocol: Prohibits asphyxiating gases and bacteriological weapons.

2. Arms Trade Treaty (2013):

o Prohibits arms transfers if they could be used for genocide or war crimes.

Treaties on Specific Groups:

1. Convention on the Rights of the Child (1989):

o Protects children during armed conflicts.

o Optional Protocol (2000): Prohibits recruitment of children under 18.

IHL and Protection of Civilians

 Civilians and civilian objects must not be targeted.

 Indiscriminate attacks are prohibited.

 Protection extends to:

o Hospitals and medical units.

o Cultural and religious sites.

 o Vital civilian infrastructure (e.g., water supplies).

Weapons Prohibited by IHL

1. Chemical and biological weapons.

2. Blinding laser weapons.

3. Cluster munitions.

4. Dum-dum bullets.

5. Anti-personnel mines.

Key Concepts in IHL

1. Hors de Combat:

o Individuals no longer participating in combat (e.g., wounded, prisoners).

2. Perfidy:

o Acts of deception to kill or harm (e.g., faking surrender).

3. Proportionality:

o Civilian harm must not exceed military advantage.

4. Distinction:

o Separate civilians from combatants in targeting.

Case Studies of IHL in Action

 Iranian Revolution (1979): Showed the role of IHL in civilian protection during uprisings.

 UN Peacekeeping Missions: Apply IHL to protect civilians and enforce ceasefires.

Conclusion

International Humanitarian Law protects victims of war, regulates military operations, and
ensures humanity during armed conflicts. It strikes a balance between military necessity and
humanitarian principles to mitigate the horrors of war while promoting peace and justice.
Lecture 2

1. My handwritten notes on it are available

2. Factbook Notes: Sources of International Humanitarian Law (IHL)

Source Details Examples Strengths Weaknesses

- International Armed
Conflicts: The four
1949 Geneva
Conventions, Additional
- IHL is one of the
Protocol I, 1980
most densely codified
Convention on Certain
branches of
Conventional Weapons,
international law.
2008 Convention on
Treaties are the most - Requires
Cluster Munitions. -
relevant and tangible ratification and
Non-International - Clear, written
sources of IHL, formal adoption,
Armed Conflicts: agreements with
especially for limiting its
Common Article 3, specific
Treaties international armed applicability to
Additional Protocol II, provisions. -
conflicts. - Treaty IHL non-ratifying
1998 Rome Statute, Binding on
for non-international states. - Often less
1954 Hague ratifying states.
conflicts is less dynamic and slow
Convention on Cultural
developed but to adapt.
Property and its
includes provisions
amendments, 1997
like Common Article 3
Anti-Personnel Mine
of the Geneva
Ban Convention, 1993
Conventions.
Chemical Weapons
Convention, 2008
Convention on Cluster
Munitions.

Customary - Rooted in general - Universally recognized - Dynamic and - Not written,

Law state practice (usus) customary prohibitions adaptable to making it harder
Source Details Examples Strengths Weaknesses

include bans on
weapons causing
accepted as law
unnecessary suffering
(opinio juris).- Exists
(e.g., Rule 70 of CIHL).
alongside treaty law
- Example: The
and can develop
International Military
independently or after to determine if a
Tribunal at Nuremberg new challenges.
treaties. - Binding on rule has achieved
affirmed the customary - Binding on all
all parties to a conflict, customary status.
nature of the 1907 states,
regardless of treaty - Requires courts
Hague Regulations, regardless of
ratification.- to interpret state
holding individuals treaty status.
Particularly relevant in practice.
criminally responsible
non-international
for violations. - ICTY
armed conflicts, which
judgments often rely
are less regulated by
on customary IHL
treaties.
where treaty law is
silent.

- Recognized as
"general principles of
law recognized by
- Examples: Duty to act
civilized nations." - No
in good faith, right of - Provides a
universal definition or
self-preservation, non- foundational, - Lack of a
list exists. - Drawn
General retroactivity of criminal universal comprehensive
from fundamental
Principles law (e.g., no retroactive framework. - definition or list
principles common
of Law criminal liability for Helps fill gaps in makes it less
across national legal
actions not defined as treaty and specific.
systems. - Examples
crimes at the time customary law.
include good faith,
committed).
self-preservation, and
non-retroactivity of
criminal law.

Other - Case law, doctrine, - Case Law: ICTY - Expands the - Non-binding
Influential and “soft law” judgments and the understanding nature of soft law
Sources increasingly contribute Nuremberg Trials have and application reduces
to the interpretation relied on principles of of IHL through enforceability.
Source Details Examples Strengths Weaknesses

customary IHL or treaty

of IHL rules. - Soft law law interpretation. -
includes non-binding Soft Law: Guidelines
instruments, such as like the Tallinn Manual
interpretation
guidelines or on Cyber Warfare, even
and clarification.
declarations, that though non-binding,
influence the shape interpretations
development of IHL. of IHL in new domains
like cyberspace.

IHL in the International Legal Order

Definition of IHL

 International Humanitarian Law (IHL) governs situations of armed conflict.

 Distinct from other branches of International Law with different objectives and
purposes.

 Relevant frameworks that may apply alongside IHL:

o UN Charter and the prohibition on inter-State force.

o International Human Rights Law (IHRL).

o International Criminal Law (ICL).

o The Law of Neutrality.

 Other branches of International Law that may be relevant:

o Law of the sea.

o Diplomatic and consular law.

o Environmental law.
 o Business and human rights law.

o Refugee law.

IHL and the Prohibition on the Use of Inter-State Force

 IHL applies only after armed conflict occurs and does not address the legality of the use
of force.

 The legality of inter-State force is governed by jus ad bellum (or more precisely, jus
contra bellum).

 Foundational principles of jus ad bellum are outlined in:

o The UN Charter.

o Customary international law.

The General Prohibition on the Use of Force (UN Charter, Article 2(4))

 States are prohibited from:

o Threatening or using force against the territorial integrity or political

independence of other States.

o Acting in a manner inconsistent with UN purposes.

 This prohibition is a cornerstone of international peace and security.

 IHL does not regulate the legality of the use of force but applies equally to all parties
during armed conflict.

Exceptions to the General Prohibition on the Use of Force

1. Self-Defense (Article 51):

o States can use force in response to an armed attack.

o The use of force must be:

 Necessary to address the attack.

 Proportionate to the threat posed.

 2. Security Council Authorization (Article 42):

o The UN Security Council can authorize force to maintain or restore international

peace and security.

o Actions taken under this exception are collective and occur under the UN’s
authority.

Interplay Between IHL and Jus ad Bellum

 The legality of a State’s use of force under jus ad bellum does not affect the absolute
obligation to comply with IHL.

 IHL applies equally to all belligerents, regardless of whether their use of force is lawful.

Aspect IHRL
IHL

Applies during armed conflicts, Applies based on a State's jurisdiction

Scope of regardless of location (territory, (territorial or personal), including
Application international airspace, high seas, occupied territories or effective
cyberspace). control.

Focuses on all aspects of armed Primarily focuses on human beings,

Protection & conflicts, including protecting civilian offering rights enforceable through
Obligation objects, cultural property, and the mechanisms like complaints
environment. procedures.

Obligates all parties to a conflict, Obligates only States to uphold the

Binding Parties
including non-State armed groups. protected rights.

Allows derogation in public

Rules are non-derogable, specifically
emergencies (e.g., restricting
Derogability designed for armed conflicts, even
movement), except for core non-
under military necessity or self-defense.
derogable rights like the right to life.

Interrelation Parallel application with mutual Protects all individuals but depends on
reinforcement (e.g., both prohibit context, using IHL standards in
torture). Resolves conflicts using the lex hostilities. Some areas governed solely
Aspect IHRL
IHL

specialis principle. by one body.

Prohibition against arbitrary detention

Provides limited procedural guarantees
interprets gaps in IHL. National
Complexities (e.g., for internment in non-
criminal law applies in cases unrelated
international armed conflicts).
to conflict.

Study Factbook: No Retroactivity and International Criminal Law

Topic Key Points

- No one can be punished unless their action was clearly defined as a crime
Nullum Crimen
by law at the time.<br>- Applies to national and international law.<br>-
Sine Lege
Example: Nuremberg Trials upheld accountability under international law.

- IHL obliges states to prevent/prosecute violations but does not:<br> 1.

Limitations of IHL Attach specific sanctions to violations.<br> 2. Describe violations in
in Enforcement detail.<br> 3. Establish jurisdiction procedures.<br>- Criminal law fills these
gaps.

- Traditionally enforced by States through disciplinary sanctions and

Historical national criminal prosecution.<br>- Post-WWII: Recognized as giving rise to
Enforcement of IHL individual criminal responsibility.<br>- Examples: Nuremberg and Tokyo
Trials.

International - ICTY (1993): For former Yugoslavia.<br>- ICTR (1994): For Rwanda.<br>-
Criminal Tribunals Limited jurisdiction and context-specific.

- Rome Statute (1998) created the ICC.<br>- Jurisdiction over international

Rome Statute and
crimes committed by nationals of or on the territory of State parties.<br>-
ICC
Ratified by 120+ States (not all militarily significant States).
Topic Key Points

IHL and - IHL defines rules of armed conflict and victim protection.<br>-
International International criminal law prosecutes violations.<br>- The ICC ensures
Criminal Law global accountability for war crimes and serious IHL violations.

Study Factbook: IHL and the Law of Neutrality

Topic Key Points

- Part of jus in bello (law of war).<br>- Rooted in customary law and

Introduction to the
codified in Hague Conventions V and XIII (1907).<br>- Regulates conduct
Law of Neutrality
of neutral States and belligerents during conflicts.

1. Protect neutral States from belligerent actions.<br>2. Prevent military

Aims of the Law of
support by neutral States.<br>3. Maintain diplomatic and economic
Neutrality
relations between neutral and belligerent States.

- Prevent territory, airspace, and waters from being used for military
Key Obligations of
purposes.<br>- Intern combatants entering neutral territory (e.g., under
Neutral States
Third Geneva Convention).

Key Obligations of - Respect inviolability of neutral territory.<br>- Prohibited from moving

Belligerent States troops, ammunition, or supplies across neutral territory.

- Strictly applies to international armed conflicts.<br>- Principles also

Application in
influence non-international conflicts.<br>- Example: Hague Convention
Armed Conflicts
No. V applied by analogy (ICRC).

1. 9/11 Attacks (Afghanistan): U.S. conducted cross-border operations

Real-World after blaming Afghanistan.<br>2. Israel on Lebanon, Hamas, Hezbollah:
Examples Collective punishment in violation of international law.<br>3. FARC (2008):
Colombia targeted militants in Ecuador.

Controversy over - Legality of cross-border operations remains controversial due to UN

Cross-Border Charter prohibitions on inter-State force.<br>- States are obligated to
Incursions prevent non-State armed groups from operating on their territory.

Conclusion - Law of neutrality regulates conduct during conflicts.<br>- Obligations for

neutral States to prevent hostile activities are critical.<br>- Increasingly
applied to non-international conflicts, though cross-border legality is
Topic Key Points

debated.