Lecture Notes on Concept of International Humanitarian Law -Gyan Basnet

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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 The Hague and in Geneva.

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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.

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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.

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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 Non-International Armed Conflicts.

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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.

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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.

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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).