WEEK 1: HISTORY, SOURCES AND ACTORS OF IHL
Topic Content
Articles for this week:
CA1: The High Contracting Parties undertake to respect and to ensure
respect for the present Convention in all circumstances
CA3: Conflicts not of an international character (NIAC rules)
o Humane treatment for all persons taking no active part in hostilities
GCI-IV
o Prohibition on violence to life, taking hostages, outrages on personal
dignity, passing of sentences without previous judgment
o Wounded and sick shall be collected and cared for.
o Impartial humanitarian body (such as ICRC) may offer services
API People fighting against colonial domination / racist regimes to exercise SD:
Article 1(4): API applies to armed conflicts where peoples are fighting against
colonial domination, alien occupation, against racist regimes to exercise right
to self-determination
Article 96(3): Authority representing a people in an armed conflict outlined in
Article 1(4) may undertake to apply the GCs and API by means of a unilateral
declaration addressed to the depositary
Means and Methods of warfare:
Article 35: Basic Rules
o (1) Right of parties to choose means and methods of warfare is not
unlimited
o (2) Prohibited to employ weapons and methods of warfare that cause
superfluous injury or unnecessary suffering (SI+US)
o (3) Prohibited to employ methods or means of warfare intended to /
which might cause widespread, long-term and severe damage to the
natural environment
Protection of civilian population:
Article 51: Protection of the civilian population
o (1) Civilian population and individual civilians shall enjoy general
protection against dangers arising from military operations
o (2) Civilian population shall not be the object of attack
o (3) Civilians enjoy protection of section 51 unless and for such time as
they take direct part in hostilities.
o (4) Prohibition on indiscriminate attacks
o (5) Examples of indiscriminate attacks.
o (6) Attacks against civilians by way of reprisals are prohibited
o (7) Human shields shall not be used
o (8) Violations of these provisions does not affect legal obligations
regarding civilian population, including precautionary measures
obligations (Article 57)
Article 52: General protection of civilian objects
o (1) Civilian objects shall not be the object of attack or of reprisals.
o (1) Civilian objects are all objects which are not military objectives
o (2) Attacks shall be limited strictly to military objectives
, o (2) Definition of military objectives: objects which by their nature,
location, purpose or use make an effective contribution to military action
and whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage
o (3) In case of doubt whether an object normally dedicated to civilian
purposes is being used to make an effective contribution to military
actions, it shall be presumed not to be so used.
Fundamental guarantees:
Article 75: (1) Persons in the power of a party to the conflict and who do not
benefit from more favourable treatment shall be treated humanely in all
circumstances and shall enjoy, as a minimum, the protections outlined in
Article 75 without any adverse distinction
o (2) Acts prohibited at all times:
Violence to life, health, wellbeing, especially murder, torture,
corporal punishment, mutilation
Outrages upon personal dignity, especially humiliating and
degrading treatment, enforces prostitution, indecent assault
Taking of hostages
Collective punishments
Treats to commit any of the above
o (3) Any person arrested, detained or interned for actions related to the
armed conflict shall be informed promptly of the reasons (in a language
they understand)
o (4) No sentence or penalty may be passed unless pursuant to a
conviction passed by an impartial and regularly constituted court which
respects judicial procedure
o (5) Women whose liberty has been restricted for reasons related to the
armed conflict shall be held separate from men and under immediate
supervision of women (however, families should be accommodated
together whenever possible)
o (6) Persons arrested, detained, interned for reasons related to armed
conflict shall enjoy Article 75 protections until final release
o (7) Principles for persons accused of war crimes / crimes against
humanity
o (8) No provision of Article 75 shall be construed as limiting / infringing
any other more favourable provisions.
Activities of the Red Cross and other humanitarian organisations
Article 81:
o (1) Parties to the conflict must grant the ICRC all facilities within their
power to enable the ICRC to carry out the humanitarian functions
assigned to it by the Conventions / API. The ICRC may carry out other
humanitarian activities subject to consent of the Parties to the conflict.
o (2) Parties to the conflict must grant their respective Red Cross
organisation the facilities necessary for carrying out their humanitarian
activities
o (3) HCPs and parties to the conflict shall facilitate in every way possible
the assistance which Red Cross organisations extend to victims of
conflicts
o (4) HCPs and parties to a conflict shall make similar facilities available to
other humanitarian organisations.
Responsibility
, Article 91: Parties which violate the GCs or API shall be liable to pay
compensation. Parties will be responsible for all acts committed by persons
forming part of their armed forces.
APII scope of application (NIACs against State forces where armed group has
responsible commend, control over territory, ability to conduct sustained and
concerted military operations)
Article 1: Material field of application
o (1) APII develops and supplements CA3
o (1) APII applies to all armed conflicts not covered by Article 1 of API,
which take place:
APII On the territory of a HCP;
Between its armed forces and dissident armed forces or other
organised armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to
implement [APII]
o (2) APII does not apply to situations of internal disturbance and tensions
(riots, isolated and sporadic acts of violence, other acts of a similar
nature)
, Special agreements (§§841-860):
o CA3 invites the Parties to a conflict to conclude agreements to apply, in
addition to CA3, ‘other provisions’ of the Geneva Conventions that are
not formally applicable in a NIAC
o However, CIHL applies even in the absence of a special agreement
between the parties
o Agreements may be declaratory or detailed
o The purpose of the provision is to encourage Parties to an armed conflict
to agree to a more comprehensive set of norms that protect those who
are not or no longer taking part in hostilities
o Thus, special agreements implementing CIHL, or which encompass a
broader set of norms than those set down in the GCs, in particular those
of API, may be considered special agreements under CA3.
ICRC o Agreements affirming the Parties will not use certain kinds of weapons,
Commentary
or confirming or establishing rules on the conduct of hostilities, may
on CA3:
constitute special agreements.
o Example: Agreements concluded between the Parties to the armed
Special conflicts in the former Yugoslavia in the 1990s brought provisions of the
agreements GCs and some provisions of the APs into force
Legal status of parties to the conflict (§§861-869):
Legal status
o CA3 states: ‘The application of the preceding provisions shall not affect
of non-state
the legal status of the Parties to the conflict’
armed
groups o Essential clause – makes it absolutely clear that the object of the
Convention is purely humanitarian à it is not concerned with the internal
affairs of States.
o Addresses fear that the application of the Convention, even to a very
limited extent, in cases of NIACs may interfere with the de jure
government’s lawful suppression of armed activity.
o Delegates at the conference claimed that by applying humanitarian law to
NIACs, it appears to give belligerent status to insurgents, who right to
wage war could not be recognised.
o The provision confirms that a State’s acknowledgement that CA3 and
CIHL apply to a conflict involving a non-state armed group does not
constitute any recognition of status or authority by the State.
o While IHL provides for equal rights and obligations of Parties to a conflict,
it does not confer legitimacy on non-State armed groups
Content:
ICRC – Description of this body of law: [IHL] comprises the rules which, in
times of armed conflict, seek to protect people who are not or are no
longer taking part in hostilities, and to restrict the methods and means of
warfare employed
Purpose and Summary:
concept of o Protecting people who are not / no longer taking part in hostilities
IHL
o Restricting the methods and means of warfare
IHL is fundamentally pragmatic in its approach
IHL aims to limit the brutality of conflict, recognising that it will still occur
despite Article 2(4) of the UNC
Topic Content
Articles for this week:
CA1: The High Contracting Parties undertake to respect and to ensure
respect for the present Convention in all circumstances
CA3: Conflicts not of an international character (NIAC rules)
o Humane treatment for all persons taking no active part in hostilities
GCI-IV
o Prohibition on violence to life, taking hostages, outrages on personal
dignity, passing of sentences without previous judgment
o Wounded and sick shall be collected and cared for.
o Impartial humanitarian body (such as ICRC) may offer services
API People fighting against colonial domination / racist regimes to exercise SD:
Article 1(4): API applies to armed conflicts where peoples are fighting against
colonial domination, alien occupation, against racist regimes to exercise right
to self-determination
Article 96(3): Authority representing a people in an armed conflict outlined in
Article 1(4) may undertake to apply the GCs and API by means of a unilateral
declaration addressed to the depositary
Means and Methods of warfare:
Article 35: Basic Rules
o (1) Right of parties to choose means and methods of warfare is not
unlimited
o (2) Prohibited to employ weapons and methods of warfare that cause
superfluous injury or unnecessary suffering (SI+US)
o (3) Prohibited to employ methods or means of warfare intended to /
which might cause widespread, long-term and severe damage to the
natural environment
Protection of civilian population:
Article 51: Protection of the civilian population
o (1) Civilian population and individual civilians shall enjoy general
protection against dangers arising from military operations
o (2) Civilian population shall not be the object of attack
o (3) Civilians enjoy protection of section 51 unless and for such time as
they take direct part in hostilities.
o (4) Prohibition on indiscriminate attacks
o (5) Examples of indiscriminate attacks.
o (6) Attacks against civilians by way of reprisals are prohibited
o (7) Human shields shall not be used
o (8) Violations of these provisions does not affect legal obligations
regarding civilian population, including precautionary measures
obligations (Article 57)
Article 52: General protection of civilian objects
o (1) Civilian objects shall not be the object of attack or of reprisals.
o (1) Civilian objects are all objects which are not military objectives
o (2) Attacks shall be limited strictly to military objectives
, o (2) Definition of military objectives: objects which by their nature,
location, purpose or use make an effective contribution to military action
and whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage
o (3) In case of doubt whether an object normally dedicated to civilian
purposes is being used to make an effective contribution to military
actions, it shall be presumed not to be so used.
Fundamental guarantees:
Article 75: (1) Persons in the power of a party to the conflict and who do not
benefit from more favourable treatment shall be treated humanely in all
circumstances and shall enjoy, as a minimum, the protections outlined in
Article 75 without any adverse distinction
o (2) Acts prohibited at all times:
Violence to life, health, wellbeing, especially murder, torture,
corporal punishment, mutilation
Outrages upon personal dignity, especially humiliating and
degrading treatment, enforces prostitution, indecent assault
Taking of hostages
Collective punishments
Treats to commit any of the above
o (3) Any person arrested, detained or interned for actions related to the
armed conflict shall be informed promptly of the reasons (in a language
they understand)
o (4) No sentence or penalty may be passed unless pursuant to a
conviction passed by an impartial and regularly constituted court which
respects judicial procedure
o (5) Women whose liberty has been restricted for reasons related to the
armed conflict shall be held separate from men and under immediate
supervision of women (however, families should be accommodated
together whenever possible)
o (6) Persons arrested, detained, interned for reasons related to armed
conflict shall enjoy Article 75 protections until final release
o (7) Principles for persons accused of war crimes / crimes against
humanity
o (8) No provision of Article 75 shall be construed as limiting / infringing
any other more favourable provisions.
Activities of the Red Cross and other humanitarian organisations
Article 81:
o (1) Parties to the conflict must grant the ICRC all facilities within their
power to enable the ICRC to carry out the humanitarian functions
assigned to it by the Conventions / API. The ICRC may carry out other
humanitarian activities subject to consent of the Parties to the conflict.
o (2) Parties to the conflict must grant their respective Red Cross
organisation the facilities necessary for carrying out their humanitarian
activities
o (3) HCPs and parties to the conflict shall facilitate in every way possible
the assistance which Red Cross organisations extend to victims of
conflicts
o (4) HCPs and parties to a conflict shall make similar facilities available to
other humanitarian organisations.
Responsibility
, Article 91: Parties which violate the GCs or API shall be liable to pay
compensation. Parties will be responsible for all acts committed by persons
forming part of their armed forces.
APII scope of application (NIACs against State forces where armed group has
responsible commend, control over territory, ability to conduct sustained and
concerted military operations)
Article 1: Material field of application
o (1) APII develops and supplements CA3
o (1) APII applies to all armed conflicts not covered by Article 1 of API,
which take place:
APII On the territory of a HCP;
Between its armed forces and dissident armed forces or other
organised armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to
implement [APII]
o (2) APII does not apply to situations of internal disturbance and tensions
(riots, isolated and sporadic acts of violence, other acts of a similar
nature)
, Special agreements (§§841-860):
o CA3 invites the Parties to a conflict to conclude agreements to apply, in
addition to CA3, ‘other provisions’ of the Geneva Conventions that are
not formally applicable in a NIAC
o However, CIHL applies even in the absence of a special agreement
between the parties
o Agreements may be declaratory or detailed
o The purpose of the provision is to encourage Parties to an armed conflict
to agree to a more comprehensive set of norms that protect those who
are not or no longer taking part in hostilities
o Thus, special agreements implementing CIHL, or which encompass a
broader set of norms than those set down in the GCs, in particular those
of API, may be considered special agreements under CA3.
ICRC o Agreements affirming the Parties will not use certain kinds of weapons,
Commentary
or confirming or establishing rules on the conduct of hostilities, may
on CA3:
constitute special agreements.
o Example: Agreements concluded between the Parties to the armed
Special conflicts in the former Yugoslavia in the 1990s brought provisions of the
agreements GCs and some provisions of the APs into force
Legal status of parties to the conflict (§§861-869):
Legal status
o CA3 states: ‘The application of the preceding provisions shall not affect
of non-state
the legal status of the Parties to the conflict’
armed
groups o Essential clause – makes it absolutely clear that the object of the
Convention is purely humanitarian à it is not concerned with the internal
affairs of States.
o Addresses fear that the application of the Convention, even to a very
limited extent, in cases of NIACs may interfere with the de jure
government’s lawful suppression of armed activity.
o Delegates at the conference claimed that by applying humanitarian law to
NIACs, it appears to give belligerent status to insurgents, who right to
wage war could not be recognised.
o The provision confirms that a State’s acknowledgement that CA3 and
CIHL apply to a conflict involving a non-state armed group does not
constitute any recognition of status or authority by the State.
o While IHL provides for equal rights and obligations of Parties to a conflict,
it does not confer legitimacy on non-State armed groups
Content:
ICRC – Description of this body of law: [IHL] comprises the rules which, in
times of armed conflict, seek to protect people who are not or are no
longer taking part in hostilities, and to restrict the methods and means of
warfare employed
Purpose and Summary:
concept of o Protecting people who are not / no longer taking part in hostilities
IHL
o Restricting the methods and means of warfare
IHL is fundamentally pragmatic in its approach
IHL aims to limit the brutality of conflict, recognising that it will still occur
despite Article 2(4) of the UNC
