Transcript Lecture Notes on Concept of International Humanitarian Law

Lecture Notes on
Concept of International
Humanitarian Law
-Gyan Basnet
-Meaning and Nature
-Origin and Development
-Sources
-------------------------------------------------International humanitarian law is a set of rules
which seek, for humanitarian reasons, to limit
the effects of armed conflict.
International humanitarian law is also known as
the law of war or the law of armed conflict.
Nature & Meaning: What is IHL?
• It is the body of law that applies in times of armed conflict:
International humanitarian law, the law of war, or the law of armed
conflict.
• It is also sometimes described as the human rights law of armed
conflict.
• The law of armed conflict (IHL) is the law that regulates the conduct
of armed conflicts (jus in bello).
• It comprises the Geneva Conventions and the Hague Conventions,
as well as subsequent treaties, case law, and customary
international law.
• It defines the conduct and responsibilities of belligerent nations,
neutral nations and individuals engaged in warfare, in relation to
each other and to protected persons, usually meaning civilians.
• Serious violations of international humanitarian law are called war
crimes.
Nature & Meaning
• It protects persons who are not or are no longer participating in the
hostilities and restricts the means and methods of warfare.
• IHL, (jus in bello) regulates the conduct of forces when engaged in
war or armed conflict.
• It is distinct from (jus ad bellum) which regulates the conduct of
engaging in war or armed conflict and includes crimes against
peace and of war of aggression.
• Together the jus in bello and jus ad bellum comprise the two
strands laws of war governing all aspects of international armed
conflicts.
• In a broad sense, the humanitarian provisions cover the conduct of
military operations, (methods and means o combat) as well as the
protection of the victims of armed conflicts (wounded, sick,
prisoners, and civilian populations etc.
• Strictly speaking, IHL is based on the Geneva Conventions of 1949
and the Additional Protocols 1977.
What Does it Protect?
• International humanitarian law also affords protection to certain
objects. The destruction of these objects will have a detrimental
effect on the civilian population. The protected objects include:
• Civilian objects: all objects which are not qualified as military
objectives;
• Cultural objects and religious sites;
• The natural environment;
• Objects indispensable to the survival of civilian population, such as
water.
• Works and installations containing dangerous forces, such as dams,
dykes and nuclear plants;
• Medical equipment including the means of transport;
Why so Important?
• War must be fought within certain legal boundaries. It is crucial for
human beings to survive, such as civilians, unarmed people, POW and
hostages. Human suffering is bad by any means!
• The aim of international humanitarian law is to ‘humanise’ warfare
by limiting the human suffering caused by armed conflict.
• Although it might seem more prudent to forbid all forms of war, it
would hardly be achievable in practice.
• The rules of international humanitarian law strike a careful balance
between concerns for humanity and military necessity.
• The IHL aim at safeguarding military personnel placed 'hors de
combat' and persons not taking part in hostilities;
• They also determine the rights and duties of belligerents in the
conduct of operations and limit the choice of means of doing harm.
• It focuses the wellbeing of the civilians, hostages and warring parties.
WHO IS PROTECTED BY IHL?
• One of the main purposes of IHL is to protect those persons
who do not take part or who have ceased to take part in the
hostilities.
- According to the 1949 Geneva Conventions, the following
persons are provided with protection during war:
• Wounded and sick members of the armed conflicts on land;
• Sick, wounded and shipwrecked members of the armed forces
at sea;
• Prisoner of wars;
• Civilians, including foreign civilians and refugees on the
territory where the hostilities take place and civilians in
occupied territories.
• Besides these four main categories protection is also afforded
to personnel of civil defence units, medical and religious
personnel.
WHAT DOES IHL PROTECT?
• One of the main purposes of IHL is to protect those persons who do
not take part or who have ceased to take part in the hostilities.
According to the 1949 Geneva Conventions, the following persons
are provided with protection during war:
• Wounded and sick members of the armed conflicts on land;
• Sick, wounded and shipwrecked members of the armed forces at
sea;
• Prisoner of wars;
• -Civilians, including foreign civilians and refugees on the territory
where the hostilities take place and civilians in occupied territories.
• Besides these four main categories protection is also afforded to
personnel of civil defence units, medical and religious personnel.
Basic Features
• The law (Geneva Conventions) is mandatory for nations bound by the
appropriate treaties.
• International humanitarian law is part of international law, which is
the body of rules governing relations between States
• But a number of major military powers including US not party to the
First Additional Protocol.
• They also determine the rights and duties of belligerents in the
conduct of operations and limit the choice of means of doing harm.
• Many provisions of the IHL are now accepted as customary law - that
is, as general rules by which all States are bound.
Origin and Development
Two historical streams:
- The Law of Geneva: The Geneva
law (Conventions) is concerned
with the protection of individuals.
- The Law of The Hague: The Hague
law is concerned with the means
and methods of warfare.
Law of Wars in Ancient Times
• The idea of rules to regulate armed conflict is almost as old as conflict
itself: as old as human civilization.
• IHL is rooted in the rules of ancient civilizations and religions warfare has always been subject to certain principles and customs.
• It is recognised in religious texts such as in the Hindu Philosophy
Mahabharata, Gita and the Beda the Koran and the Bible, as well as
the writings of ancient scholars and philosophers.
• Already in ancient times rules existed to regulate the conduct of
warfare which over time evolved into customary rules.
• In ancient Nepal, for example the Laws of Manu, describing the types
of weapons that should not be used.
• The beginning of modern international humanitarian law in the sense
of the modern movement to codify and develop customary
international law dates back to the middle of the nineteenth century.
• The process of drafting and adopting rules has mainly taken place in
Codifications: Before the Hague Conventions
-The international law of armed conflict is written down in several
Conventions, Declarations and Regulations.
• The Lieber Code 1863: set out the rights and the obligations of the
armed forces during the war. It is regarded as the first codification of
rules regarding warfare.
• The Lieber Code also forbade the execution of POWs.
• In 1868 the Declaration of St Petersburg was adopted. It was the first
instrument that limited the use of weapons during war. The
Declaration banned the use of explosive and incendiary projectiles.
• At the same time, the involvement of a number of individuals such as
Florence Nightingale and Henry Dunant led to more systematic
efforts to prevent the suffering of war victims.
• Their individual efforts led to the founding of the International
Committee of the Red Cross (ICRC) in 1863.
Hague Conventions
• The next major developments in international humanitarian law
regarding methods and means took place in 1899 at the First Hague
Peace Conference.
• It was successful in adopting three conventions:
- First, the Convention for the Peaceful Adjustment of International
Differences.
- Second, the Convention on Respecting the Laws and Customs of War
on Land, which contained annexed Regulations concerning certain
aspects of land warfare.
- The Conference also adopted the Convention for the Adaptation to
Maritime Warfare
• In 1907 the Second Peace Conference was organised. Its main goal
was to ensure international peace by developing more specified
treaties. Therefore, 13 new conventions and one declaration were
adopted.
Geneva Conventions
• There are four Geneva Conventions including :
- First Geneva Convention Considering the Wounded and the 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.
- Third Geneva Convention: Treatment of Prisoners of War" (first
adopted in 1929, last revision in 1949)
- Fourth Geneva Convention: The Protection of Civilian Persons in Time
of War.
• In addition, there are three additional amendment protocols to the
Geneva Convention:
- Protocol I (1977): Relating to the Protection of Victims of International
Armed Conflicts.
- Protocol II (1977): Relating to the Protection of Victims of NonInternational Armed Conflicts.
Other International Laws Regulating Conflicts
- Other agreements prohibit the use of certain weapons and
military tactics and protect certain categories of people and goods.
These agreements include:
• The 1954 Convention for the Protection of Cultural Property in
the Event of Armed Conflict, plus its two protocols;
• The 1972 Biological Weapons Convention;
• The 1980 Conventional Weapons Convention and its five
protocols;
• The 1993 Chemical Weapons Convention;
• The 1997 Ottawa Convention on anti-personnel mines;
• The 2000 Optional Protocol to the Convention on the Rights of
the Child on the involvement of children in armed conflict.
When Does IHL Applies?
• International humanitarian law is applicable in the event of armed
conflict, whether international or non-international in nature.
• An international armed conflict is a conflict between two or more
states.
• The 1949 Geneva Conventions are applicable to all cases of declared
war or any other armed conflict which may arise between two or
more of the High Contracting Parties, even if the state of war is not
recognised by one them
• There is no definition of a non-international armed conflict in
international humanitarian law, Article 3 common to the four Geneva
Conventions of 1949 states that this single article shall apply to cases
of armed conflict not of an international character taking place on
the territory of a State Party.
Sources of IHL
• Prior to codification in the 19th Century, sources of IHL included
domestic military codes, bilateral treaties, conflict-specific
agreements, and customs and traditions.
• Persians, and Greeks all had rules or laws concerning various aspects
of war, such as treatment of prisoners, use of poisons, and respect
for cultural objects.
• Conduct and means of war go back to ancient times.
• Treaties
• Case Law
• Customary Law
• Military Manuals
• Traditions
• Journals and Yearbooks
• Experts’ Writings: In Europe, the earliest writers on international law
discussed standards for armed conflicts e.g. Hugo Grotius.
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Leading Institutions to Enforce IHL
International Committee of the Red Cross
United Nations
International Court of Justice
International Criminal Court
International Criminal Tribunals such as ICTY and
ICTR (ad hoc).