JUS1730/5730 International Humanitarian Law (the Law of Armed Conflict), autumn 2013

Lecture 1, 26 August 2013

Kjetil Mujezinović Larsen

k.m.larsen@nchr.uio.no

Gentian Zyberi

gentian.zyberi@nchr.uio.no

Structure of the current lecture

1. Introduction to the course (KML)

2. Introduction to international humanitarian law (KML)

1. Terminology and related areas

2. Jus ad bellum and jus in bello

3. Main sources of IHL

4. Scope of application

3. Main principles of IHL (GZ)

Practical course information

• JUR1730/JUS5730 International humanitarian law (the law of armed conflict)

http://www.uio.no/studier/emner/jus/jus/JUS5730/h13/index.html

• Autumn 2013: – 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 to GCs and GC APs:

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_Law_Research1.htm

– Central Human Rights Sources on the Internet: http://www.jus.uio.no/smr/tjenester/bibliotek/human-rights-sources.pdf

Terminology and related areas

International

humanitarian

law (IHL)

International

criminal law

Human

rights law

International

refugee law

General

international

law

Jus ad

bellum

Terminology and related areas

International

humanitarian

law (IHL)

International

criminal law

Sanctions for violations of

certain violations of

international humanitarian

law

Lectures 7 and 8:

Implementation,

enforcement,

responsibility

JUS5570 International

Criminal Law

(spring semester)

Terminology and related areas

International

humanitarian

law (IHL)

International

refugee law

Armed conflicts generate

large numbers of

refugees and IDPs

Some rules in IHL:

Protection of civilians

JUS5530 Refugee and

Asylum Law

(spring semester)

Terminology and related areas

International

humanitarian

law (IHL)

Human

rights law

Considerable

overlap

Lecture 9:

The relationship with other

legal regimes

International

humanitarian

law (IHL)

General

international

law

IHL as part of international law

Traditionally: International

law regulates the

relationship between

States

States are the core

subjects of

international law…

…but individuals may

have rights and duties

IHL is a good example

IHL is a part of

international law

…but with some

special characteristics

• Sources

• Methods

• Implementation

• Enforcement

• …

Individuals have both

rights and obligations

Sources

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

Method: Interpretation

Jus ad bellum and jus in bello

International

humanitarian

law (IHL)

Jus ad bellum

• To which extent the use of military

force against another state is allowed

• UN Charter Article 2.4: The

prohibition against use of force

• ICC Statute: Crime of aggression

• Two (three?) exceptions

Jus in bello

• Conduct in armed conflicts

• 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 do not

justify violations of jus in bello, or vice

versa

• Violations of jus ad bellum do not

entail violations of jus in bello, or vice

versa

Sources: An introductory point

Recall

ICJ Statute,

Art. 38

Conventions,

custom,

general

principles

Principles play an

important role in IHL

Principles on

different levels

Operational

principles

Dominant

principles

Fundamental

principles

Main sources of IHL

Conventions International

customary law

«Geneva law» «Hague law»

• 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 rules pertaining to

occupation

• The two additional protocols (1977)

1. International armed conflicts

2. Non-international armed conflicts

«Geneva law» Primarily rules on

protection

• 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

«Hague law» Primarily rules on

protection

Primarily rules on

means of war

International customary 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.

Opinio juris

Usus

International customary law

Opinio juris

Usus

Three volumes in

2005:

1) 161 rules

2 and 3) State

practice

Scope of

application

of IHL

Material

scope of

application

Temporal

scope of

application

Spatial

scope of

application

Personal

scope of

application

Personal

scope of

application

To which

subjects does

IHL apply?

Who have

obligations

under IHL?

Who have

rights

under IHL?

States Non-state

armed groups Individuals

International

organisations

Temporal

scope of

application

When does the

applicability of

IHL begin?

When does the

applicability of

IHL end?

The first hostile act in the

armed conflict that puts at

stake a provision in IHL

Objective vs.

subjective

When a treaty

enters into force

for a specific State

Material scope of

application

The end of military

operations

Spatial

scope of

application

The principle of

effectiveness

The territory of

belligerent States

Actual hostilities

Occupied

territories

The principle of

unity of territory

Material

scope of

application

• International armed

conflicts and occupation

• Non-international armed

conflicts (two categories)

• Internal disturbances,

riots, etc., not amounting

to armed conflicts

• Peace

Qualification of conflicts,

lecture # 2

Contact information:

Kjetil Mujezinović Larsen

Professor of Law, the Norwegian Centre for Human Rights

Phone: +47 22 84 20 83

E-mail: k.m.larsen@nchr.uio.no