ihl project.docx

8/18/2019 IHL Project.docx

1/35

2015-16

Sahil AhmedB.A, LLB. (Hons.), Vth Semester

Faclt! o" La#, $amia %illia &slamia

&m+lementationo" &nternationalHmanitarian


2/35

Acknowledgement

& tae this o++ortnit! to than all #ho haeeen o" immense hel+ to me #hile #ritin thisresearch +a+er. & am e/tremel! indeted to Mr.Sourabh Mishra at Faclt! o" La#, $amia %illia&slamia 'niersit!, e# *elhi, "or her alaleidance, timel! adice and constant s++ort

#hile #ritin this #or, #hich has hel+ed me tostreamline m! thohts and #ritin.

er and aoe all, & o#e more than & colde/+ress m! immense det o" ratitde to m!+arents, #ho stood ! me all alon and #ithot

#hose moral and nancial s++ort & #old nothae een #hat & am toda!.

& also e/tend m! dee+ sense o" ratitde tothe learned athors #hose #ors & haeconslted and re"erred and #hich has een

enlisted in the Biliora+h!. Last t not least, &e/tend m! sincere thans to all m! "riends #hohae ien me a lot o" condence #hile & #as

#orin on this to+ic.

ae 3 1


3/35

Sahil Ahmed

ae 3 2


4/35

Synopsis

Introduction

Implementation of International Humanitarian Law

What is International Humanitarian Law?

Where did international humanitarian law originate?

Where is international humanitarian law to be found?

When does international humanitarian law apply?

What does international humanitarian law cover?

What is protection? What restrictions are there on weapons and tactics?

Is international humanitarian law actually complied with?

What should be done to implement the law?

Origin of International Humanitarian Law

How and why did the Convention come to life?

The birth of modern International Law

The Progressive evelopment of IHL !"#$% & '("')

The *tanding of IHL within Public International Law

The istinction between +us ad ,ellum and +us in ,ello

*ources of International Humanitarian Law

The -aterial .ield of /pplication of IHL0 When oes IHL

/pply?

International armed conflict

1on2international armed conflict

Other situations

,asic 3ules of IHL

ocument attached0 1ational 4nforcement of Humanitarian

Law5 Information 6it5 IC3C

,ibliography

ae 3 4


5/35

Introduction

International humanitarian law & also 7nown as the Law of /rmed Conflict or

the Law of War !ius in bello) & applies to armed conflicts and has a two2fold purpose0 to regulate the conduct of hostilities and to protect the victims of

armed conflicts8 It does not5 however5 answer the 9uestion of whether or not a

particular war is lawful !ius ad bellum)8 This is dealt with by the Charter of the

:nited 1ations !:1)8 International humanitarian law applies to all types of

armed conflicts5 whether lawful or not5 and must be respected by all parties to

the conflict8

/ substantial part of international humanitarian law5 notably concerning the

conduct of hostilities5 was elaborated at the international peace conferences of

"#;; and ";(< in The Hague !=Hague Law>)8 The participants adopted a

number of declarations and agreements intended to impose limits on the means

and methods of warfare5 such as the Hague Conventions of "#;; and ";(<

concerning the Laws and Customs of War on Land5 the various agreements onthe conduct of war at sea of ";(< and the declarations of "#;; banning the use

of poison gas and =dumdum> bullets8

Provisions for the protection of victims of armed conflicts !=eneva Law>) are

contained in the four eneva Conventions of ";%;5 which protect the following0

@ Wounded and sic7 in armed forces in the field !.irst Convention)

@ Wounded5 sic7 and shipwrec7ed armed forces at sea !*econd Convention)

@ Prisoners of war !Third Convention)

@ Civilians in time of war !.ourth Convention)

The eneva Conventions of ";%; were supplemented in ";


6/35

In '((A5 a third /dditional Protocol on the adoption of an additional emblem

was adopted8

*ince the adoption of the two /dditional Protocols of "; is no longer pertinent8

International humanitarian law applies only to armed conflicts5 whether

international or non2international5 although there are far more rules that apply to

international armed conflicts than to non2international armed conflicts8 In

addition5 there is another area of international law5 7nown as customaryinternational law5 which is applicable not only to international armed conflict5

for which it was originally developed5 but also to non2international armed

conflicts8

/lthough international humanitarian law is intended mainly for *tates and

parties to a conflict !e8g8 armed groups)5 many of its provisions must also be

respected by individuals8 *tates are obliged to respect the norms5 to suppressany violations5 and either themselves prosecute persons responsible for grave

breaches5 in particular of war crimes5 or eBtradite such persons8 If a *tate is

either unwilling or unable to underta7e prosecutions then5 as appropriate5 the

responsibility passes to the International Criminal Court in The Hague8

.urthermore5 the international community has set up international ad hoc

tribunals for the prosecution of crimes committed in the conteBt of specificconflicts !e8g8 the International Criminal Tribunals for the former ugoslavia

and for 3wanda)8

The parties to a conflict must respect international humanitarian law in all

circumstances and regardless of the behaviour of the other side8 / *tate Party

cannot evade its own obligations arguing that the other Party is failing to uphold

international humanitarian law8 Thus a *tate Party accused of a violation cannot

ae 3 5


7/35

Dustify its actions on the grounds that the other Party committed a similar

violation8 The suspension clause that generally applies in treaty law has no

validity here8 .urthermore5 *tates remain bound by the Conventions even if the

enemy has not acceded to them8

Implementation of International

Humanitarian Law

What is International Humanitarian Law?

International humanitarian law is a set of rules which see75 for humanitarian

reasons5 to limit the effects of armed conflict8 It protects persons who are not or

are no longer participating in the hostilities and restricts the means and methods

of warfare8 International humanitarian law is also 7nown as the law of war or

the law of armed conflict8

International humanitarian law is part of international law5 which is the body of

rules governing relations between *tates8 International law is contained in

agreements between *tates & treaties or conventions &5 in customary rules5

which consist of *tate practise considered by them as legally binding5 and in

general principles8

International humanitarian law applies to armed conflicts8 It does not regulate

whether a *tate may actually use forceE this is governed by an important5 butdistinct5 part of international law set out in the :nited 1ations Charter8

Where did international humanitarian law originate?

International humanitarian law is rooted in the rules of ancient civiliFations and

religions & warfare has always been subDect to certain principles and customs8

:niversal codification of international humanitarian law began in the nineteenth

century8 *ince then5 *tates have agreed to a series of practical rules5 based on

ae 3 6


8/35

the bitter eBperience of modern warfare8 These rules stri7e a careful balance

between humanitarian concerns and the military re9uirements of *tates8

/s the international community has grown5 an increasing number of *tates have

contributed to the development of those rules8 International humanitarian law

forms today a universal body of law8

Where is international humanitarian law to be found?

/ maDor part of international humanitarian law is contained in the four Geneva

Conventions of 19498 1early every *tate in the world has agreed to be bound by

them8 The Conventions have been developed and supplemented by two further

agreements0 the Additional Protocols of 1977 relating to the protection of

victims of armed conflicts8

Other agreements prohibit the use of certain weapons and military tactics and

protect certain categories of people and goods8 These agreements include0

• The ";A% Convention for the Protection of Cultural Property in the 4vent

of /rmed Conflict5 plus its two protocolsE

• The ";


9/35

applies only once a conflict has begun5 and then e9ually to all sides regardless

of who started the fighting8

International humanitarian law distinguishes between international and non2

international armed conflict. International armed conflicts are those in which at

least two *tates are involved8 They are subDect to a wide range of rules5

including those set out in the four eneva Conventions and /dditional Protocol

I8

Non-international armed conflicts are those restricted to the territory of a single

*tate5 involving either regular armed forces fighting groups of armed dissidents5or armed groups fighting each other8 / more limited range of rules apply to

internal armed conflicts and are laid down in /rticle G common to the four

eneva Conventions as well as in /dditional Protocol II8 It is important to

differentiate between international humanitarian la and human rights la8

While some of their rules are similar5 these two bodies of law have developed

separately and are contained in different treaties8 In particular5 human rights law

& unli7e international humanitarian law & applies in peacetime5 and many of its

provisions may be suspended during an armed conflict8

What does international humanitarian law cover?

International humanitarian law covers two areas0

• The protection of those who are not5 or no longer5 ta7ing part in fightingE

• 3estrictions on the means of warfare & in particular weapon & and the

methods of warfare5 such as military tactics8

What is “protection”?

ae 3 7


10/35

International humanitarian law protects those who do not ta7e part in the

fighting5 such as civilians and medical and religious military personnel8 It also

protects those who have ceased to ta7e part5 such as wounded5 shipwrec7ed and

sic7 combatants5 and prisoners of war8

These categories of person are entitled to respect for their lives and for their

physical and mental integrity8 They also enDoy legal guarantees8 They must be

protected and treated humanely in all circumstances5 with no adverse

distinction8

-ore specifically0 it is forbidden to 7ill or wound an enemy who surrenders or is unable to fightE the sic7 and wounded must be collected and cared for by the

party in whose power they find themselves8 -edical personnel5 supplies5

hospitals and ambulances must all be protected8

There are also detailed rules governing the conditions of detention for prisoners

of war and the way in which civilians are to be treated when under the authority

of an enemy power8 This includes the provision of food5 shelter and medicalcare5 and the right to eBchange messages with their families8

The law sets out a number of clearly recogniFable symbols which can be used to

identify protected people5 places and obDects8 The main emblems are the 3ed

Cross5 the 3ed Crescent and the symbols identifying cultural property and civil

defence facilities8

What restrictions are there on weapons and tactics?

International humanitarian law prohibits all means and methods of warfare

which0

• .ail to discriminate between those ta7ing part in the fighting and those5

such as civilians5 who are not5 the purpose being to protect the civilian

population5 individual civilians and civilian propertyE• Cause superfluous inDury or unnecessary sufferingE

ae 3 8


11/35

• Cause severe or long2term damage to the environment8

Humanitarian law has therefore banned the use of many weapons5 including

eBploding bullets5 chemical and biological weapons5 blinding laser weapons and

anti2personnel mines8

Is international humanitarian law actually complied with?

*adly5 there are countless eBamples of violation of international humanitarian

law8 Increasingly5 the victims of war are civilians8 However5 there are important

cases where international humanitarian law has made a difference in protecting

civilians5 prisoners5 the sic7 and the wounded5 and in restricting the use of

barbaric weapons8

iven that this body of law applies during times of eBtreme violence5

implementing the law will always be a matter of great difficulty8 That said5

striving for effective compliance remains as urgent as ever8

What should be done to implement the law?

-easures must be ta7en to ensure respect for international humanitarian law8

*tates have an obligation to teach its rules to their armed forces and the general

public8 They must prevent violations or punish them if these nevertheless occur8

In particular5 they must enact laws to punish the most serious violations of the

eneva Conventions and /dditional Protocols5 which are regarded as war

crimes8 The *tates must also pass laws protecting the 3ed Cross and 3ed

Crescent emblems8

-easures have also been ta7en at an international level0 tribunals have been

created to punish acts committed in two recent conflicts !the former ugoslavia

and 3wanda)8 /n international criminal court5 with the responsibility of

repressing inter alia war crimes5 was created by the ";;# 3ome *tatute8

ae 3 10


12/35

Whether as individuals or through governments and various organiFations5 we

can all ma7e an important contribution to compliance with international

humanitarian law8

Origin of International Humanitarian Law

The main subDect of this course will be the study of contemporary international

humanitarian law8 1evertheless5 it is necessary to briefly eBamine the evolution

of that body of law8 One can say that the laws of war are almost as old as war

itself8 4ven in ancient times5 there were interesting although rudimentary

customs that today would be classified as humanitarian8 It is interesting to note

that the content and aim of these customs were the same for almost every

civiliFation around the world8 This spontaneous generation of humanitarian

standards5 at different times and among peoples or states that possessed limited

means of communication with each other5 is also an important phenomenon8

This phenomenon lends credence to the historical argument regarding0

@ The necessity of having rules that apply to armed conflictsE

@ The eBistence of a feeling in many civiliFations that5 under certain

circumstances5 human beings5 friend or foe5 must be protected and respected8

Although scholars generall! agree that the "irth of modern I#$ as in 1%&4'

ith the adoption of the (irst Geneva Convention' it is also clear that the rules

contained in that Convention ere not entirel! ne. In realit!' a large amount of

the (irst Geneva Convention as derived from e)isting international customar!

la. In fact' there ere rules protecting certain categories of victims in armed

conflicts and customs concerning the means and methods of authori*ed or

prohi"ited com"at during hostilities as earl! as 1+++ ,C.

ae 3 11


13/35

/lthough these ancient and often very rudimentary rules were not established

for humanitarian reasons5 but rather for purely economic purposes5 their effect

was humanitarian8

.or eBample0

@ The prohibition against poisoning wells !reaffirmed in "#;; in The Hague)

was originally made in order to permit the eBploitation of con9uered areasE

@ The first reasons for the prohibition against 7illing prisoners !reaffirmed and

developed in the Third eneva Convention of ";%;) were to safeguard the lives

of future slaves or to facilitate the eBchange of prisoners8

*uch prohibitions can be found in many different civiliFations5 throughout the

world and throughout history8 .or eBample5 in many parts of /frica there were

specific rules regarding the commencement of hostilities between different

peoples that correspond5 to a large eBtent5 to the classical 4uropean traditional

obligation of declaring war8 -oreover5 in a treatise called =The /rts of the

War>5 written in A(( ,C5 the Chinese writer *un TFu5 eBpressed the idea that

wars must be limited to military necessity5 and that prisoners of war5 the

wounded5 the sic75 and civilians should be spared8 Li7ewise5 in the Indian

subcontinent5 similar rules can be found8 .or eBample5 in the Code of anu

written in '(( ,C5 one finds rules relating to behaviour in combat8 The Code

declared that barbed or poisoned weapons were prohibited5 that wounded

soldiers had to be cared for5 and that surrendering combatants must be spared8

These eBamples of humanitarian customs in various civiliFations demonstrate

that5 even if the eneva or Hague Conventions were not universal at inception5

since they were drafted and adopted by lawyers and diplomats belonging to the

4uropean Christian culture5 their sentiments are nearly universal5 since the

principles they contain can be found in very different systems of thought

both 4uropean and non24uropean8

ae 3 12


14/35

The cultural history of 4urope also provides eBamples of both barbarism and

humanity8 The first significant development in respect to the law of war

occurred in G(( ,C5 with the ree7 philosophical school called =stoicism>8 This

school advocated a path towards humanity through understanding and

=sympathy>5 the need to understand and respect each other8

,etween the "$th and "#th centuries5 in the 3enaissance and /ge of 3eason5

222an interesting and humanitarian practice developed in 4urope8 .re9uently5

warriors met before the hostilities and decided on guidelines to be respected

during the battle8 These special agreements could5 for eBample5 establish the

observance of an armistice two days per wee75 the obligation to collect the

wounded5 or a responsibility to release prisoners at the end of the war8 /lthough

these agreements were concluded on an ad hoc basis5 and had a limited scope of

application5 such precedents played a very significant role in the creation of

IHL8

.rom this historical perspective developed the documented origin of IHL in the

mid2";th Century8 :p to that point5 the practice of the accepted rules of warfare

reflected the theories of philosophers5 priests or Durists with local and special

agreements8' However5 these customs were geographically limited and there

were no international !states were not yet born) or universal rules8 The first

universal treaty on Humanitarian Law is the eneva Convention of "#$%8

How and why did the Convention come to life?

The conception of IHL can be traced to the ,attle of *olferino5 a terrible

conflict between .rench and /ustrian forces that too7 place in northern Italy in

"#A;8 One witness of that carnage5 a businessman from eneva named Henry

unant5 was appalled not so much by the violence of that battle5 but rather by

the desperate and miserable situation of the wounded left on the battlefields8

ae 3 14


15/35

With the help of the local inhabitants5 unant immediately decided to collect

and care for the wounded8

,ac7 in eneva5 unant published a short boo7 in "#$'5 A emor! of olferino5 in which he vividly depicted the horrors of the battle0

=/hen the sun came up on the tent!-fifth 0une 1%9 it disclosed the most

dreadful sights imagina"le. ,odies of men and horses covered the "attlefield2

corpses ere stren over roads' ditches' ravines' thic3ets and fields5he

poor ounded men that ere "eing pic3ed up all da! long ere ghastl! pale

and e)hausted. ome' ho had "een the most "adl! hurt' had a stupefied loo3

as though the! could not grasp hat as said to them 6thers ere an)ious

and e)cited "! nervous strain and sha3en "! spasmodic trem"ling. ome' ho

had gaping ounds alread! "eginning to sho infection' ere almost cra*ed

ith suffering. 5he! "egged to "e put out of their miser!' and rithed ith

faces distorted in the grip of the death struggle.1

In his boo75 unant not only described the battle5 but tried to suggest and

publiciFe possible measures to improve the fate of war victims8 He presented

three basic proposals designed to mitigate the suffering of the victims of war8 To

this end he proposed0

• That voluntary societies be established in every country which5 in time of

peace5 would prepare themselves to serve as auBiliaries to the military

medical services8

• That *tates adopt an international treaty guaranteeing legal protection to

military hospitals and medical personnel8

• That an international sign of identification and protection of medical

personnel and medical facilities be adopted8

1 A %emor! o" Sol"erino, &9:9, ;enea 1876, +. 1.

ae 3 1


16/35

These three proposals were simple5 but they have had deep and lasting

conse9uences8

• The whole system of 1ational 3ed Cross or 3ed Crescent *ocieties !of

which there are today "## around the world) stems from the first

proposalE

• The second proposal gave birth to the =.irst eneva Convention> in

"#$%E

• The third proposal led to the adoption of the protective emblem of the

3ed Cross or the 3ed Crescent8

unants boo7 enDoyed enormous success throughout 4urope8 /lthough it did

not present entirely original ideas5 the merit of the boo7 is in large part due to

the timeliness of its message8

/t that time5 a private welfare association eBisted in eneva0 The *ociety for

the Public ood8 Its President5 ustave -oynier5 was impressed by unants

boo7 and proposed to the members of the *ociety that they try to carry out

unants proposals8 This suggestion was accepted and five members of the

*ociety5 -ssrs8 unant5 -oynier5 ufour5 /ppia and -aunoir5 created a special

committee Jin "#$GK5 the =International *tanding Committee for /id to

Wounded *oldiers8> This committee would5 "A years later5 become the

International Committee of the 3ed Cross8

In "#$G5 the Committee convened military and medical eBperts at a conference

in eneva8 The aim of that meeting was to eBamine the practicability and

feasibility of the proposals made by unant8 The results of the meeting were

encouraging5 and the members of the Committee persuaded the *wiss .ederal

Council to convene a diplomatic conference5 whose tas7 would be to give a

legal form to unants proposals8

ae 3 15


17/35

To this end5 a diplomatic

conference was held in

"#$% in eneva and the

"$ states represented

finally adopted the

=eneva Convention of

''nd /ugust "#$% for the

/melioration of the

Condition of the

Wounded in /rmies in

the .ield8> Its result was

an international treaty

open to universal ratification !i8e8 an agreement not limited to a specific region

or conflict5 with binding effects on the *tates that would formally accept it) in

which states agreed to voluntarily limit their own power in favour of the

individual8 .or the first time5 armed conflict became regulated by written5

general law8

he !irth of "odern International Humanitarian Law

In ten concise articles5 the .irst eneva Convention gave a legal format to

unants proposals and established a special status for medical personnel8 The

fact that this conference lasted less than "( days provides a clear indication of the general support given to the propositions8

Of course5 this original convention has been replaced by more modern and

comprehensive treaties8 However5 it illustrates in a concise manner the central

obDectives of humanitarian law treaties8

ae 3 16


18/35

,eginning in "#$$5 the eneva Convention proved its worth on the battlefield8

,y "##'5 "# years after its adoption5 it had been universally ratified8'

he #rogressive $evelopment of IHL

%&'() * +,&+-

The three main characteristics that mar7ed this evolution are0

a) The constant enlargement of the categories of war victims protected by

humanitarian law !military woundedE sic7 and shipwrec7edE prisoner of

warE civilians in occupied territoriesE the entire civilian population)5 as

well as the eBpansion of the situations in which victims are protected

!international and non2international armed conflicts)E

b) The regular updating and moderniFation of the treaties to account for the

realities of recent conflicts8 .or eBample5 the rules protecting the

wounded adopted in "#$% were thus revised in ";($5 ";';5 ";%;5 and

";)8

c) Two separate legal currents have5 up until ";


19/35

1,0 eneva Law Treaties are reproduced in boldE Hague Law instruments in

normal font8

The Conventions currently in force have replaced the older eneva Conventions8

*trictly spea7ing5 the =Hague Current> originated in the eclaration of *t

Petersburg5 which was proclaimed by a Conference convened by /leBander III5

the Tsar of 3ussia in "#$#8 The eclaration prohibited the use of eBplosive

bullets and enunciated some basic principles relating to the conduct of

hostilities8

In "#;; the so2called =.irst Peace Conference> was convened in the

1etherlands by another Tsar5 1icholas II5 in The Hague8 That Conference

adopted several Conventions whose general goal was to limit the evils of war8

/mong other things5 these Conventions prohibited0

• The launching of proDectiles from balloonsE

• The use of poisonous gasesE

• The use of dumdum bullets8

The main achievement of this Conference was the adoption of a principle

named for its initiator5 .8 -artens5 the legal adviser of the 3ussian Tsar8 The

=-artens Clause> says that0

=until a more complete code of the la of ar has "een issued' the #igh

Contracting Parties deem it e)pedient to declare that' in cases not included in

the 8egulations adopted "! them' the inha"itants and the "elligerents remain

under the protection and the rule of the principles of the la of nations' as the

result from the usages esta"lished among civili*ed peoples' from the las of

humanit!' and the dictates of the pu"lic conscience.

4


20/35

/nother important success of the "#;; Conference was the eBtension of the

humanitarian rules from the eneva Convention of "#$% to the victims of naval

conflicts8 This adaptation is included at the origin of the present *econd eneva

Convention8

In ";($5 the Convention of "#$% that protected the wounded and the sic7 of

armies in the field was revised8 /lthough the revision eBpanded the convention

to GG articles from the original "( in the "#$% version5 the fundamental

principles remained the same8

In ";( !also a

result of the .irst World War)8 Partially eBamined during the Peace

ae 3 18


21/35

Conference of "#;; and ";( This instrument limits or prohibits the use of mines5 booby traps5

incendiary weapons5 and non2detectable fragments8

In ";;G5 a comprehensive Convention prohibiting the development5 production5

stoc7piling5 and use of chemical weapons was adopted8 This treaty supplements

the basic prohibition contained in the ";'A eneva Protocol8

ae 3 20


22/35

In ";;A5 a new Protocol5 an appendage to the ";#( Convention5 was adopted8

This new instrument prohibited the use of laser weapons designed to cause

permanent blindness8

In ";;


23/35

as artillery shells5 mortars5 grenades5 bombs5 and roc7ets left behind after an

armed conflict8

In '((A5 a diplomatic conference held in eneva adopted a hird 2dditional#rotocol to the eneva Conventions5 creating an additional emblem alongside

the 3ed Cross and 3ed Crescent8 The additional emblem5 7nown as the red

crystal5 should provide a comprehensive and lasting solution to the emblem

9uestion8 It will appear as a red frame in the shape of a s9uare on a diagonal on

a white bac7ground5 and is free from any religious5 political5 or other

connotation8

In '((#5 governments negotiated and adopted the Convention on Cluster

"unitions8 This important international humanitarian law treaty prohibits the

use5 production5 stoc7piling5 and transfer of cluster munitions5 and re9uires

*tates to ta7e specific action to ensure that these weapons claim no future

victims8

ae 3 22


24/35

aa to mae im+roised e/+losie deices (&E*s), at a "ormer steel "actor! in %oadish. A%&S% and


25/35

LAG F EA9E

HA;'E LAG ;EEVA LAG

$'S A*BELL'%

$'S & BELL

Relationship between Public International Law and International Humanitarian Law

binding character8 This means5 inter alia5 that the most serious violations

thereof trigger individual criminal responsibility8

International Humanitarian law must be understood and analysed as a distinct part of a more comprehensive framewor70 the rules and principles regulating the

coordination and cooperation between the members of the international

communityE i8e8 Public International Law8

The following table illustrates this fact0 IHL should thus be considered as an

integral !but distinct) part of Public International Law8

34.:44 L/W H:-/1 3IHT* L/W

L/W* ON431I1 IPLO-/TIC

34L/TIO1*

L/W* ON431I1 4CO1O-IC

34L/TIO1*

L/W* ON431I1 TH4 P4/C4.:L4

*4TTL4-41T O. CO1.LICT

L/W* ON431I1

I1T431/TIO1/L O3/1I*/TIO1*

The neBt figure shows more precisely how IHL fits into the general framewor7

of Public International Law5 and how it differs from another distinct part of this

whole5 the principles of :us ad "ellum.

ae 3 2

&


26/35

he $istinction between Jus ad Bellum and Jus in Bello

0us ad "ellum !which regulates the resort to armed force) refers to the principle

of fighting a war based on precise causes5 such as self2defence8 On the other

hand5 :us in "ello !the rules applicable in armed conflicts a878a IHL) refers to the

principle of fighting a war Dustly5 and encompasses standards of proportionality

and distinctions between civilians and combatants8 International Humanitarian

Law !IHL) developed at a time when the use of force was a lawful form of

international relations5 when states were not prohibited from waging war5 when

they5 in fact5 had the right to ma7e war !i8e8 when they had the :us ad "ellum)8

Conse9uently5 it was not a problem logically for international law to contain

certain rules of behaviour for states to observe in war !the :us in "ello5 or law

regulating the conduct of war)5 if they resorted to that means8 Today5 however5

the use of force between states is prohibited by a peremptory rule of

international law% !the :us ad "ellum has changed into a Dus contra bellum)8

4Bceptions to this general prohibition are allowed in cases of individual and

collective self2defence5A *ecurity Council enforcement measures5$ and arguably

E/+ressed in Art. 2 () o" the ' 9harter =All %emers shall re"rain in theirinternational relations "rom the threat or se o" "orce aainst the territorial interit! or

+olitical inde+endence o" an! state, or in an! other manner inconsistent #ith the

r+oses o" the 'nited ations

5 :econiIed in Art. 51 o" the ' 9harter =othin in the +resent 9harter shall

im+air the inherent riht o" indiidal or collectie sel"-de"ence i" an armed

attac occrs aainst a %emer o" the 'nited ations, ntil the Secrit! 9oncilhas taen measres necessar! to maintain international +eace and secrit!.

%easres taen ! %emers in the e/ercise o" this riht o" sel"-de"ence shall eimmediatel! re+orted to the Secrit! 9oncil and shall not in an! #a! aJect the

athorit! and res+onsiilit! o" the Secrit! 9oncil nder the +resent 9harter to

tae at an! time sch action as it deems necessar! in order to maintain orrestore international +eace and secrit!

6 Estalished in 9ha+ter V&& o" the ' 9harter.

ae 3 25


27/35

to enforce peoples right to self2determination<

!national liberation wars)8

Logically5 at least one side of a contemporaryinternational armed conflict is therefore

violating the rules of Dus ad bellum5 Dust by

using force5 however respectful of IHL8 /ll

municipal laws of the world e9ually prohibit

the use of force against !governmental) law

enforcement agencies8

espite the prohibition against armed

conflicts5 they continue to occur8 Today states

recogniFe that international law has to address this reality of international life5

not only by combating the phenomenon5 but also by regulating it to ensure a

level of humanity in this fundamentally inhumane and illegal situation8 .or

practical5 policy5 and humanitarian reasons5 IHL must apply impartially to both

belligerentsE the one resorting lawfully to force and the one resorting unlawfully

to force8 Otherwise it would be impossible to practically maintain respect for

IHL as5 at least between the belligerents5 it is always controversial which party

resorted to force in conformity with the Dus ad bellum and which violates the Dus

contra bellum8 In addition5 from a humanitarian standpoint5 the victims on both

sides of the conflict need the same protection5 and they are not necessarilyresponsible for the violation of the Dus ad bellum committed by =their> party8

Therefore5 IHL must be honoured independently of any argument for Dus ad

bellum and has to be completely distinguished from :us ad "ellum8 /ny past5


28/35

present5 and future theory of =Dust> war only concerns Dus ad bellum and cannot

Dustify !but is in fact fre9uently used to imply) that those fighting a =Dust> war

have more rights or less obligations under IHL than those fighting an unDust

war8

This complete separation between :us ad "ellum and :us in "ello has been

recogniFed in the preamble of /dditional Protocol I of ";

ae 3 2


29/35

This complete separation between :us ad "ellum and :us in "ello implies that

IHL applies whenever there is de facto !in fact) an armed conflict5 however that

conflict can be 9ualified under Dus ad bellum5 and that no Dus ad bellum

arguments may be used in interpreting IHL8 However5 it also implies that the

rules of IHL may not render the Dus ad bellum impossible to implement5 e8g85

render legitimate self2defence unlawful8

he /ources of International Humanitarian

Law*ince IHL is an integral part of Public International Law5 its sources correspond5

logically enough5 to those of the latter5 as they are defined in /rticle G# of the

*tatute of the International Court of +ustice8

/ccording to /rt G# !") of the *tatute of the International Court of +ustice5

which is regarded as an authoritative statement of the sources of international

law5 the Court shall apply0

• International conventions !please note convention is another word for

treaty)E

• International custom5 as evidence of a general practice accepted as lawE

• The general principles of law recognised by civilised nationsE and

• +udicial decisions and the teachings of the most highly 9ualified

publicists5 as subsidiary means for the determination of rules of law8

Treaties and custom are the main sources of international law8 In respect to IHL5

the most important treaties are the eneva Conventions of ";%;5 the /dditional

Protocols of ";


30/35

practice of states and considered by those states as practice8 There is wide

consensus among scholars that the rules contained in the four eneva

Conventions of ";%; for the Protections of Nictims of War and in The Hague

Convention !IN) of ";(< on the Laws of War on Land !with the eBception of

administrative5 technical and logistical regulations) reflect customary

international law8 There is also agreement that many provisions of /dditional

Protocol I and5 to a lesser degree that the rules contained in /dditional Protocol

reflect custom8 When treaty rules are considered to reflect custom5 they become

binding for all *tates

*tates are also bound by general principles of law8 In regard of IHL one may

thin7 of the fundamental principles of IHL such as the principle of distinction or

the principle of proportionality8

he "aterial 3ield of 2pplication of IHL4

When $oes IHL 2pply?

International Humanitarian Law !IHL) applies in two very different types of

situations0 international armed conflicts and non2international armed conflicts8

,efore defining these two situations of application a few words should be said

about the notion of =armed conflict5> which has5 from ";%; onwards5 replaced

the traditional notion of =war8>

/ccording to the =Commentary to the .irst eneva Conventions of ";%;> #5The

substitution of this much more general eBpression !=armed conflict>) for the

word =war> was deliberate8 One may argue almost endlessly about the legal

definition of =war8> / *tate can always pretend when it commits a hostile act

7 See ictet, $.S., Commentary of the First Geneva Convention for the

Amelioration of the Condition of the Wounded and Sick in Armed Forces in theField, ;enea, &nternational 9ommittee o" the :ed 9ross, 1852, +. 42.

ae 3 28


31/35

against another state5 that it is not ma7ing war5 but merely engaging in a police

action5 or acting in legitimate self2defence8 The eBpression =armed conflict>

ma7es such arguments less easy8 /ny difference arising between two *tates and

leading to the intervention of armed forces is an armed conflict 888 even if one of

the Parties denies the eBistence of a state of war8>

/lthough the treaties of IHL systematically refer to different types of =armed

conflicts>5 they do not provide for a general definition of that concept8 The first

comprehensive definition has been developed by the International Tribunal for

the former2ugoslavia !ICT)8 /ccording to this definition =!) an armed

conflict eBists whenever there is a resort to armed force between *tates or

protracted armed violence between governmental authorities and organiFed

armed groups or between such groups within a *tate>8;

This definition is now widely accepted and has since been used in a number of

military manuals and in numerous court cases !which demonstrate how Dudicial

decisions can become sources of IHL)8

International armed conflict

IHL relating to international armed conflict applies =to all cases of declared war

or of any other armed conflict which may arise between two or more of the

High Contracting Parties5 even if the state of war is not recogniFed by one of

them8>"( The same set of provisions also applies = to all cases of partial or total

occupation of the territory of a High Contracting Party5 even if the said

occupation meets with no resistance>8""

8 See &9


32/35

/ccording to traditional doctrine the notion of international armed conflict was

thus limited to armed contests between states8 uring the iplomatic

Conference which led to the adoption of the two /dditional Protocols of ";


33/35

carry out sustained and concerted military operations and to implement this

Protocol8>

This fairly restrictive definition applies only to the situations covered by

/dditional Protocol II8 The definition does not apply to the situations covered

by /rticle G common to the four eneva Conventions8"% Practically5 there are

thus situations of non2international armed conflicts in which only /rticle G will

apply5 the level of organiFation of the dissident groups being insufficient for

Protocol II to apply8 Conversely5 common /rt G will apply to all situations

covered by /dditional Protocol II8

Other situations

IHL is not applicable in situations of internal violence and tensions8 This point

has been clearly made in /rticle " !') of /dditional Protocol II5 which states5

=This Protocol shall not apply to situations of internal disturbances and tensions5

such as riots5 isolated and sporadic acts of violence and other acts of a similar

nature5 as not being armed conflicts8>"A

he !asic 7ules of IHL&(

") The parties to a conflict must at all times distinguish between the civilian

population and combatants in order to spare the civilian population and

1 Art. 1 o" Additional rotocol && =


34/35

civilian property8 1either the civilian population as a whole5 nor

individual civilians5 may be attac7ed8 /ttac7s may be made solely against

military obDectives8

') People who do not or can no longer ta7e part in the hostilities are entitledto respect for their lives and for their physical and mental integrity8 *uch

people must in all circumstances be protected and treated with humanity5

without any unfavourable distinction whatsoever8

G) It is forbidden to 7ill or wound an adversary who surrenders or who can

no longer ta7e part in the fighting8

%) 1either the parties to the conflict nor members of their armed forces have

an unlimited right to choose methods and means of warfare8 It is

forbidden to use weapons or methods of warfare that are li7ely to cause

unnecessary losses or eBcessive suffering8

A) The wounded and sic7 must be collected and cared for by the party to the

conflict which has them in its power8 -edical personnel and medical

establishments5 transports5 and e9uipment must be spared8 The 3ed Cross

or 3ed Crescent or red crystal on a white bac7ground is the distinctive

sign indicating that such persons and obDects must be respected8

$) Captured combatants and civilians who find themselves under the

authority of the adverse party are entitled to respect for their lives5 their

dignity5 their personal rights5 and their political5 religious5 and other

convictions8 They must be protected against all acts of violence or

reprisal8 They are entitled to eBchange news with their families and

receive aid8 They must enDoy basic Dudicial guarantees8

ae 3 44


35/35

assisted in remoin odies illed drin the iolence in Bnia, *:9, and the srrondin areas as the s

ihl project.docx

Documents