TOPIC I

INTRODUCTION

1
Meaning
InternationalHumanitarian Law is a
branch of Public International Law
which deals with armed hostilities.
◦ It is the law which regulates the
conduct of parties to an armed conflict
◦ It is primarily based on the reciprocal
expectations of two parties at war and
notions of chivalrous and civilized
behaviour.
◦ It did not emanate from a struggle of
rights-claimant but from a principle of
charity- “inter arma caritas”
2
Continue
 The motivation behind the development of IHL
was the idea of reciprocity between states in
the treatment of the other states’ troops.
 Considerations of military strategy and reciprocity
have historically been central to its development
 So it can generally be said that IHL is the
whole body of international conventional or
customary rules, which are specifically
intended to regulate humanitarian problems
arising directly from both international or non-
armed conflicts, and which restricts, for
humanitarian reasons, the right of parties to
the conflict to use means and methods of
warfare of their choice and to protect people
and objects affected by the conflict.

3
Continue
IHL is intended to;
◦ Protect the victims of arms, e.g wounded
soldiers
◦ Protect innocent civilians, e.g children, aged,
men and women during armed conflict
◦ Limit the means and methods of waging the
war, e.g prohibiting the use of certain
weapons
◦ Limiting the abuse of force and power of
state or government officials in individual
states
◦ Provide for criminal prosecution to those
interfering with civilian means of survivor
during hostilities, etc
4
Continue
IHL as a body of rules is made of a
fusion of two body of rules known
as;
◦ Geneva Law-which is made up the rules
which tend to safeguard people who
are under the power of the enemy; and
◦ Hague Law-which regulates the rights
and duties of the belligerents with
respect to the control of military
operations and limits the choice of
means for harming the enemy.
5
Continue
The ICJ in its advisory opinion made
on 8th July 1996 on the Legality of the
threat or use of nuclear weapons,
stated that;
◦ …these two branches [Hague and Geneva
laws] of the law applicable in armed
conflict have become so closely
interrelated that they are considered to
have gradually formed one single
complex system, known today as
international humanitarian law” See ICJ,
Reports 1996, p.226, para 75
6
Origin and Development of
IHL``
A systematic attempt to limit the
means and methods of warfare can
be traced far back as from the 18 th
and strengthened in 19th century.
The concerns for limiting means
and methods were influenced by
the age of enlightenment.
The need to protect the victims of
armed conflicts such as the
wounded, sick, shipwrecked
became so apparent
7
Continue
 In the US, a German immigrant, Francis
Lieber, drew up a Code of conduct in 1863
which came to be known as the “Lieber
Code” to regulate the means and methods
of warfare for the Northern army during
the American Civil war.
 The Lieber Code included humane
treatment of civilian populations in the
areas of conflict and also forbade the
execution of POWs (Prisoners of War)
 Other persons who contributed to the
development of IHL include Florence
Nighingale and Henry Dunant.
8
Continue
 Henry Dunant, a Swedish businessman
who had worked with wounded soldiers at
the Battle of Solferino, led to more
systematic efforts to try and prevent the
suffering of war victims.
 Dunant wrote a book, which he titled A
Memory of Solferino, and in which he
described the horrors he had witnessed.
 His reports influenced the foundation of
the International Committee of the Red
Cross (ICRC) in 1863 and the convening
of a conference in Geneva in 1864 which
drew up the Geneva Convention for the
Amelioration of the Condition of the
Wounded in Armies in the Field
9
Continue
The 1864 Geneva Convention was
multilateral and aimed at
protecting war victims.
◦ It created obligation to take care of the
wounded and sick military personnel
◦ Protected medical personnel and their
transport objects, etc
Laterdevelopment led to the
adoption of the Hague law which
aimed at limiting the means and
methods of warfare
10
Continue
Contemporary IHL is therefore
divided into
◦ THE GENEVA LAW
◦ THE HAGUE LAW

11
THE GENEVA LAW
◦ The Geneva Law which includes;
 First Geneva Convention"for the
Amelioration of the Condition of the
Wounded and Sick in Armed Forces in
the Field" (first adopted in 1864, last
revision in 1949)
 Second Geneva Convention"for the
Amelioration of the Condition of
Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea" (first
adopted in 1949, successor of the 1907
Hague Convention X)
12
Continue
◦ The Third Geneva Convention"relative to
the Treatment of Prisoners of War" First
adopted in 1929, last revision in 1949)
◦ Fourth Geneva Convention"relative to
the Protection of Civilian Persons in Time
of War" (first adopted in 1949, based on
parts of the 1907 Hague Convention IV)
Allthese are commonly known as
the “FOUR GENEVA CONVENTIONS
OF 1949”

13
Continue
Inaddition, there are three additional
protocols to the four Geneva
Conventions:
◦ Additional Protocol I of 1977: This is the
Protocol Additional to the Geneva
Conventions of 12 August 1949, relating to
the Protection of Victims of International
Armed Conflicts.
◦ Additional Protocol II of 1977: This is the
Protocol Additional to the Geneva
Conventions of 12 August 1949, relating to
the Protection of Victims of Non-International
Armed Conflicts.
14
Continue
Additional Protocol III of 2005:
◦ This is the Protocol Additional to the
Geneva Conventions of 12 August
1949, and relating to the Adoption of
an Additional Distinctive Emblem.
◦ As of June 2007 it had been ratified by
17 countries and signed but not yet
ratified by an additional 68 countries.
These Additional Protocols are
sometimes known as “The New
York Law”

15
THE HAGUE LAW
1899 HAGUE CONVENTION
This peace conference was held
from May 18, 1899 and signed on
July 29, 1899 and entered into force
on September 4, 1900.
The Hague Convention of 1899
consisted of four main sections and
three additional declarations

16
Continue
The four main sections were;
Pacific Settlement of International
Disputes
Laws and Customs of War on Land
Adaptation to Maritime Warfare of
Principles of Geneva Convention of
1864
Prohibiting Launching of Projectiles
and Explosives from Balloons

17
Continue
 The Hague Declarations were;
On the Launching of Projectiles and
Explosives from Balloons
On the Use of Projectiles the Object
of Which is the Diffusion of
Asphyxiating or Deleterious Gases
On the Use of Bullets Which Expand
or Flatten Easily in the Human Body

18
Continue
 Themain effect of the Convention
was to ban the use of certain
types of modern technology in
war:
bombing from the air,
chemical warfare and hollow point
bullets
The Convention also set up the
Permanent Court of Arbitration

19
Continue
 THE 1907 HAGUE CONVENTION
This was the second peace
conference after the 1899
conference
The Conference was held from June
15 to October 18, 1907, to expand
upon the original Hague Convention,
modifying some parts and adding
others, with an increased focus on
naval warfare.

20
Continue
The British tried to secure limitation of
armaments, but were defeated by the
other powers, led by Germany, which
feared a British attempt to stop the
growth of the German fleet. Germany
also rejected proposals for compulsory
arbitration.
However, the conference did enlarge
the machinery for voluntary
arbitration, and established
conventions regulating the collection
of debts, rules of war, and the rights
and obligations of neutrals.
21
Continue
 The Final Agreement was signed
on October 18, 1907, and entered
into force on January 26, 1910.
 It consisted of thirteen sections,
of which twelve were ratified and
entered into force:
The Pacific Settlement of
International Disputes
The Limitation of Employment of
Force for Recovery of Contract Debts

22
Continue
The Opening of Hostilities
The Laws and Customs of War on
Land
The Rights and Duties of Neutral
Powers and Persons in Case of War
on Land
The Status of Enemy Merchant Ships
at the Outbreak of Hostilities

23
Continue
 The Conversion of Merchant Ships into
War-Ships
 The Laying of Automatic Submarine
Contact Mines
 Bombardment by Naval Forces in Time of
War
 Adaptation to Maritime War of the
Principles of the Geneva Convention
 Certain Restrictions with Regard to the
Exercise of the Right of Capture in Naval
War
 The Creation of an International Prize Court
[Not Ratified]
 The Rights and Duties of Neutral Powers in
Naval War
24
Continue
Two declarations were signed as
well:
Extending Declaration II from the
1899 Conference to other types of
aircraft
On the obligatory arbitration

25
Continue
 THE
GENEVA PROTOCOL TO THE
HAGUE CONVENTION
 Though not negotiated in The Hague, the
Geneva Protocol to the Hague Convention
is considered an addition to the
Convention.
 Signed on June 17, 1925 and entering into
force on February 8, 1928, it permanently
bans the use of all forms of chemical and
biological warfare in its single section,
entitled Protocol for the Prohibition of the
Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological
Methods of Warfare.
26
Continue
The protocol grew out of the increasing
public outcry against chemical warfare
following the use of mustard gas and
similar agents in World War I, and
fears that chemical and biological
warfare could lead to horrific
consequences in any future war.
The protocol has since been
augmented by the Biological Weapons
Convention (1972) and the Chemical
Weapons Convention (1993)

27
SOURCES OF IHL
Being a branch of the Public
International Law, IHL draws its
sources from;
◦ International Conventions
◦ Customary international law
◦ General principles of law recognized
by civilized nations
◦ Basic Principles underlying IHL
◦ Judicial decisions

28
Interplay between IHL &
IHRL
The two, International Humanitarian
Law and International Human Rights
Law, are traditionally two distinctive
bodies of law
◦ IHRL basically deals with the inherent rights
of the person to be protected at all times
against abusive powers; on the contrary
◦ IHL regulates the conduct of parties to an
armed conflict
However, there number of occasions
which show contact between these
bodies of law
29
Continue
The interplay between the two laws
has led to a complicated and detailed
questions and discussions on the
converging and diverging areas of the
two laws.
◦ There is a significant overlap between the
two bodies of law
◦ The expansion of the scope of application of IHRL,
combined with the monitoring machinery and
individual complaints procedures existing in the
human rights system have lead to the recognition
that human rights, by their nature, protect that
person at all times and are therefore relevant to
and apply in situations of armed conflict.

30
Continue
◦ Further, human rights and humanitarian law
share a common ideal, protection of the dignity
and integrity of the person, and many of their
guarantees are identical, such as the
protection of the right to life, freedom from
torture and ill-treatment, the protection of
family rights, economic, and/or social rights.
 TheICJ has in several occasions addressed
the question of an overlap between IHL and
IHRL.
◦ On of such cases is in its advisory opinion on
the Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory
[Advisory Opinion, 2004 I.C.J. (July 9), at para.
106]
31
Continue
In that case the court stated;
◦ …the Court considers that the protection
offered by human rights conventions does
not cease in case of armed conflict,… As
regards the relationship between
international humanitarian law and human
rights law, there are thus three possible
situations:
 some rights may be exclusively matters of
international humanitarian law;
 others may be exclusively matters of human
rights law;
 yet others may be matters of both these
branches of international law.
 So while recognizing their distinctive nature, the
court also asserts the similarity between the two.
32
Similarities between IHL &
IHRL
The following are some areas of
their contact;
◦ Both protect right to life, health and
dignity
 The ICJ in the Advisory Opinion on the
Legality of the Threat of Use of Nuclear
Weapons of 1996 stated that;
 The Court observes that the protection of
the International Covenant of Civil and
Political Rights does not cease in times of
war, except by operation of Article 4 of the
Covenant whereby certain provisions may
be derogated from in a time of national
emergency.
33
Continue
 Respect for the right to life is not,
however, such a provision. In
principle, the right not arbitrarily to
be deprived of one’s life applies also
in hostilities.
 The test of what is an arbitrary
deprivation of life, however, then falls
to be determined by the applicable
lex specialis, namely, the law
applicable in armed conflict, which is
designed to regulate the conduct of
hostilities.
34
Continue
Thus whether a particular loss of life,
through the use of a certain weapon
in warfare, is to be considered an
arbitrary deprivation of life contrary
to Article 6 of the Covenant, can only
be decided by reference to the law
applicable in armed conflict and not
deduced from the terms of the
Covenant itself.

35
Continue
Other similarities include;
◦ Both prohibit some inhumane
conducts like mistreatment, torture
and death penalty
◦ Both require fair trial
◦ Enforcement depends on
nations/states cooperation
◦ Both fall under public International
Law

36
Differences
Some of the points of departure
between the two bodies of law are;
◦ Most of IHL instruments apply only to
contracting parties while Human Rights
apply universally
◦ Enforcement of Human rights depends
mainly on municipal law while IHL
depends on International Conventions
◦ IHL applies mainly in wartime while IHRL
applies mainly in peacetime but extends
its application even in some events
during wartime
37