INTERNATIONAL HUMANITARIAN LAW
MAIN TREATIES/LAWS:
- Geneva Conventions I-IV of 1949, which deal with the protected groups of war:
I) Wounded and sick soldiers on land
II) Wounded and sick soldiers on sea
III) Prisoners of war
IV) Protection of civilians and occupation
Additional protocols: (1) in international armed conflicts and (2) in non-international armed
conflicts
- Convention with respect to the Laws and Customs of War on Land of 1899 and 1907: to ‘diminish
the evils of war’ and reduce its effects and the number of casualties; outlines the treatment of
prisoners of war, spies, truce, etc.
- The goal of international humanitarian law is to make the consequences of war less cruel for the
war participants and civilians
- The Hague Law limits the methods and means of warfare
- The Geneva Law protects people not taking an active part in warfare from inhumane acts
- International humanitarian law is the origin of international criminal law because they were the
first rules that created individual responsibility
- 1863 Lieber Code established rules for the conduct of warfare, outlining principles of military
necessity, humane treatment of civilians, and proper treatment of POWs
- The Red Cross defines humanitarian law as follows: “International rules, established by treaties
or custom, which are specifically intended to solve humanitarian problems directly arising from
international or non-international armed conflicts and which, for humanitarian reasons, limit the
right of Parties to a conflict to use the methods and means of warfare of their choice or protect
persons and property that are, or may be, affected by conflict.
JUS AD BELLUM V JUS IN BELLO
- Jus ad Bellum are the international rules pertaining to which extent the use of military force
against another state is allowed:
1- UN Charter Article 2 (4): The use or threat of use of force against states is prohibited
2- The non-usage of force is a jus cogens in international law.
3- Article 53 of the Vienna Convention nullifies a treaty if it conflicts with a jus cogens or a
peremptory norm
4- Exceptions (when a state can use violence): self-defense [until the SC takes proper measures]
(art. 51 of UN Charter) and Articles 39-41 of UN Charter
- Jus in bello are international rules pertaining how armed conflicts must be conducted. Main
principles of Jus in Bello: humanity, distinction [between combatants and non-combatants],
military necessity, proportionality. Distinction and proportionality help assess military necessity.
Every person, even POWs, must be treated humanely.
PERSONAL SCOPE OF APPLICATION
IHL applies to the following subjects:
, - States: parties to the conflict and parties to IHL instruments (treaties)
- Non-state armed groups who are parties to the conflict
- Individuals: belonging to parties to the conflict)
1- Civilians and other protected persons [soldiers out of the combat who are not fighting] (they
have rights and obligations)
2- Combatants (have rights and obligations)
MATERIAL SCOPE OF APPLICATION
- international armed conflicts
- Occupation
- Non-international armed conflicts: wars of national liberated (these are treated as intl. armed
conflicts), civil wars, and other internal armed conflicts
- IHL does not apply to internal disturbances (Article 1 of AP II of GC) and during peace time
INTERNATIONAL ARMED CONFLICTS, OCCUPATION, WARS OF NATIONAL LIBERATION
- It is when armed forces of one state are using force against another state
- Occupation is when the armed forces of one state are occupying territory outside of their own
territory
- A war of national liberation is when people are fighting against a colonial power, alien
occupation, or a racist regime in order to obtain self-determination
- Common article 2 of the Geneva Convention [common article which all 4 Genevas share]
states that IHL should apply to international armed conflict and occupation
- Protocol 1 to the Geneva Convention makes IHL applicable to wars of national liberation [non-
international armed conflicts]
- Wars of national liberation are treated as an international armed conflict
NON-INTERNATIONAL ARMED CONFLICT
- Rules that apply:
1) Common Art. 3 of GC (in a non-international armed conflict, soldiers not engaged and
civilians must be protected and shall not be killed, mutiliated, cruelly treated, tortured,
taken hostage, humiliated, or executed/judged without prior judgement);
2) Art. 1 of AP II: extends article 3 of GC to non-international armed conflicts
3) Art. 4 of AP II: protection of civilians during non-international armed conflict. Protects them
against violence of life and health (murder, cruel treatment, torture), collective punishment,
taking of hostages, acts of terrorism, outrages upon personal dignity (degrading treatment,
rape, enforced prostitution), slavery, pillage, threats to commit any of those acts. Also
protects children and ensures their right (no separation of families, they will receive
education, etc.
PRIMARY AND SECONDARY STATUS
- PRIMARY: combatants and legitimate targets [who have immunity for acts of war]; and civilians
and protected persons [who don’t have immunity]
- SECONDARY: hors de combat, POWs, unlawful combatant, detainees
MAIN TREATIES/LAWS:
- Geneva Conventions I-IV of 1949, which deal with the protected groups of war:
I) Wounded and sick soldiers on land
II) Wounded and sick soldiers on sea
III) Prisoners of war
IV) Protection of civilians and occupation
Additional protocols: (1) in international armed conflicts and (2) in non-international armed
conflicts
- Convention with respect to the Laws and Customs of War on Land of 1899 and 1907: to ‘diminish
the evils of war’ and reduce its effects and the number of casualties; outlines the treatment of
prisoners of war, spies, truce, etc.
- The goal of international humanitarian law is to make the consequences of war less cruel for the
war participants and civilians
- The Hague Law limits the methods and means of warfare
- The Geneva Law protects people not taking an active part in warfare from inhumane acts
- International humanitarian law is the origin of international criminal law because they were the
first rules that created individual responsibility
- 1863 Lieber Code established rules for the conduct of warfare, outlining principles of military
necessity, humane treatment of civilians, and proper treatment of POWs
- The Red Cross defines humanitarian law as follows: “International rules, established by treaties
or custom, which are specifically intended to solve humanitarian problems directly arising from
international or non-international armed conflicts and which, for humanitarian reasons, limit the
right of Parties to a conflict to use the methods and means of warfare of their choice or protect
persons and property that are, or may be, affected by conflict.
JUS AD BELLUM V JUS IN BELLO
- Jus ad Bellum are the international rules pertaining to which extent the use of military force
against another state is allowed:
1- UN Charter Article 2 (4): The use or threat of use of force against states is prohibited
2- The non-usage of force is a jus cogens in international law.
3- Article 53 of the Vienna Convention nullifies a treaty if it conflicts with a jus cogens or a
peremptory norm
4- Exceptions (when a state can use violence): self-defense [until the SC takes proper measures]
(art. 51 of UN Charter) and Articles 39-41 of UN Charter
- Jus in bello are international rules pertaining how armed conflicts must be conducted. Main
principles of Jus in Bello: humanity, distinction [between combatants and non-combatants],
military necessity, proportionality. Distinction and proportionality help assess military necessity.
Every person, even POWs, must be treated humanely.
PERSONAL SCOPE OF APPLICATION
IHL applies to the following subjects:
, - States: parties to the conflict and parties to IHL instruments (treaties)
- Non-state armed groups who are parties to the conflict
- Individuals: belonging to parties to the conflict)
1- Civilians and other protected persons [soldiers out of the combat who are not fighting] (they
have rights and obligations)
2- Combatants (have rights and obligations)
MATERIAL SCOPE OF APPLICATION
- international armed conflicts
- Occupation
- Non-international armed conflicts: wars of national liberated (these are treated as intl. armed
conflicts), civil wars, and other internal armed conflicts
- IHL does not apply to internal disturbances (Article 1 of AP II of GC) and during peace time
INTERNATIONAL ARMED CONFLICTS, OCCUPATION, WARS OF NATIONAL LIBERATION
- It is when armed forces of one state are using force against another state
- Occupation is when the armed forces of one state are occupying territory outside of their own
territory
- A war of national liberation is when people are fighting against a colonial power, alien
occupation, or a racist regime in order to obtain self-determination
- Common article 2 of the Geneva Convention [common article which all 4 Genevas share]
states that IHL should apply to international armed conflict and occupation
- Protocol 1 to the Geneva Convention makes IHL applicable to wars of national liberation [non-
international armed conflicts]
- Wars of national liberation are treated as an international armed conflict
NON-INTERNATIONAL ARMED CONFLICT
- Rules that apply:
1) Common Art. 3 of GC (in a non-international armed conflict, soldiers not engaged and
civilians must be protected and shall not be killed, mutiliated, cruelly treated, tortured,
taken hostage, humiliated, or executed/judged without prior judgement);
2) Art. 1 of AP II: extends article 3 of GC to non-international armed conflicts
3) Art. 4 of AP II: protection of civilians during non-international armed conflict. Protects them
against violence of life and health (murder, cruel treatment, torture), collective punishment,
taking of hostages, acts of terrorism, outrages upon personal dignity (degrading treatment,
rape, enforced prostitution), slavery, pillage, threats to commit any of those acts. Also
protects children and ensures their right (no separation of families, they will receive
education, etc.
PRIMARY AND SECONDARY STATUS
- PRIMARY: combatants and legitimate targets [who have immunity for acts of war]; and civilians
and protected persons [who don’t have immunity]
- SECONDARY: hors de combat, POWs, unlawful combatant, detainees
