LAW 549LAW 549

Principles of International Humanitarian Law

LAW 549 Outline

• Primary Concepts• Fundamental Principles• Operational Principles

LAW 549

Recall The Purposes of LOAC

• Reduce unnecessary suffering

• Protect the victims of armed conflicts, whether combatants or non-combatants

• Facilitate the restoration of peace

LAW 549 Fundamental Principle

• The right of the parties to a conflict to choose methods or means of warfare is not unlimited

LAW 549 Martens Clause

• Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents 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 public conscience.

– 1899 Hague Conventions

LAW 549 Core Principles

• Military Necessity; • Humanity; • Distinction• Proportionality.

LAW 549 Core Concepts of LOAC

• http://phap.org/training/online-courses/course-video/core-principles-international-humanitarian-law

LAW 549 Military Necessity

• The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war

LAW 549

Limitations of Military Necessity

• Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering

1863 Lieber Code ,Article 16

Military Necessity

• Recognizes violence is necessary for military purposes

• Violence is to be directed only at military objectives

• Military Necessity serves as a benchmark – it is not a Carte Blanche for unrestricted violence

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Necessity and Legality

• An act carried out cannot be defended under the principle of necessity if the act is forbidden by the LOAC

LAW 549

LAW 549

Humanity

Forbids the infliction of suffering, injury or destruction not actually necessary for legitimate military purposes.

LAW 549 Chivalry

• Prohibits dishonourable or treacherous conduct

• Is a core factor in the prohibition against perfidy

LAW 549 Fundamental Principles

• Humanitarian Principle;• Principle of the Law of Geneva:• Principle of the Law of War (or Law of the

Hague

LAW 549 Humanitarian Principle

• Military necessity must always be compatible with respect for the human person. Even in an armed conflict, there are certain basic human rights that must be respected.

LAW 549

Principle of the Law of Geneva

• Persons rendered hors de combat (out of combat) and those not directly participating in hostilities shall be respected, protected and treated humanely.

LAW 549 Law of Geneva

• Protection for:– Wounded, sick and shipwrecked– Prisoners of war– Civilians affected by armed conflict

• Special protections for:– Medical personnel– Medical transports– Medical facilities

LAW 549 Principle of the Law of War (Law of the Hague)

• This principle is the corollary to the Martens Clause .

• The right of the parties to a conflict to choose the methods and means of warfare is not unlimited.

LAW 549 Hague Law

• Exploding bullets and undetectable fragments• Poisonous gas • Poisoned weapons• Chemical and biological weapons• Blinding lasers• AP mines, cluster munitions

LAW 549 Operational Principles

• Distinction

• Non-discrimination

• Proportionality

LAW 549 Distinction Is:

The obligation to identify and differentiate between military objectives (legitimate targets), and the civilian population and civilian objects.

LAW 549 Principle of Distinction

• The principle of distinction separates those who may be legitimately the subject of direct attack, namely combatants and those who take a direct part in hostilities, from those who may not be so subject.

• It also separates legitimate targets, namely military objectives, from civilian objects.

LAW 549 Distinction was Not Always the Rule

LAW 549 The Basic Rule

• In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives

AP 1 – Article 48

LAW 549 Definition Of Military Objective

• Objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definite military advantage. A specific area of land may constitute a military objective.AP 1 – Art 52(2)

• Establishments, buildings and locations at which the armed forces or their materials are located are military objectives.

LAW 549 Combatants AP1 Art 43

The armed forces of a Party to a conflict consist of all organized armed forces, …. Such armed forces shall be subject to an internal disciplinary system which, ' inter alia', shall enforce compliance with the rules of international law applicable in armed conflict.

LAW 549 Duty to Distinguish – AP1 Art 44

• Combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.

• He shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:– during each military engagement, and– during such time as he is visible to the adversary while

he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Civilians And Civilian Population

•The civilian population as such, as well as individual civilians, shall not be the object of attack•Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibitedAP1, Art 51(2)

LAW 549

LAW 549 Definition of “Civilian”

1. A civilian is any person who does not belong to one of the categories of persons referred to in …Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

2. The civilian population comprises all persons who are civilians.

3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character

LAW 549

LAW 549 Non-discrimination

• The LOAC binds both sides in a conflict, irrespective of which side is the aggressor

• LOAC must be applied without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.

LAW 549 Application in all Circumstances

• A party to an international armed conflict is bound to comply with the LOAC even if an adverse party breaches the law.

• Do unto others as you would have them do unto you

LAW 549 Proportionality (jus in bello)

• The law of war recognizes that in the conduct of hostilities, civilians in or near military objectives may be harmed during attacks

• The principle of proportionality balances the concepts of military necessity against the requirements of humanity

LAW 549 Proportionality Test

Is the expected incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, excessive in relation to the concrete and direct military advantage anticipated?AP1 Art 57(2)(a)(iii)

LAW 549 Military Advantage

The military advantage at the time of the attack is that advantage anticipated from the military campaign or operation of which the attack is part, considered as a whole and not only from isolated or particular parts of that campaign or operation.

LAW 549 Concrete and Direct Military Advantage

A concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation.

What constitutes a military advantage may include a variety of considerations, including the security of the attacking forces.

Questions?