LESSON 1: INTRODUCTION

KEY
IHL – International Humanitarian Law
ICRC – The International Committee of the Red Cross
APII – Additional Protocol II
NIAC – Non-International Armed Conflict
International Humanitarian Law is built upon the principle that “the life, dignity and
property of civilians must be protected and that there must be a clear distinction
between military and civilian objectives.
And that unnecessary suffering should never be inflicted on human beings, not even in
the circumstances of war.
International humanitarian law is built on the set of rules which seek, for humanitarian
reasons, to limit the effects of international armed conflict. It protects persons who
are not or are no longer participating in the hostilities and restricts the means and
methods of warfare.
International humanitarian law is also known as the law of war or the law of armed
conflict.
International Humanitarian Law limits the violence and armed conflict by sparing those
who do not take part in hostilities (civilians), those who are no longer taking part in the
hostilities (wounded, sick and surrendered soldiers) and those who do not directly take
part in the hostilities( auxiliary staff)
It restricts the amount of force necessary to achieve the aim of the armed conflict. The
only legitimate claim is to weaken the military potential of the enemy. Capture
instead of killing.
Attack combatants and not civilians and only destroy military objectives and not civilian
objectives.
The primary purpose of international Humanitarian Law is to restrict means and methods
that parties to an armed conflict use and ensure humane treatment and protection of
persons no longer taking part in hostilities.
This type of law contains the minimum standards of humanity that must be respected in
any situation of an armed conflict.
Although IHL was previously conceived as a body of law to regulate interstate relations
when they were fighting interstate conflict are no longer prominent with regards to the
changing nature of international law.
IHL therefore now, regulates the use of force in instances where a state has lost its
monopoly over the use of force over its territory by regulating the use of force by that
government and other actors using violence.
Side Note

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 Under APII which relates to the scope of armed conflict in relation to NIAC
For a group to qualify as an armed group it must meet a certain criteria
1. A person who is identified as the leader of the group – the case of Osama Bin
Laden (Al Qaida)
2. A territory under the armed group i.e. a specified area under the control of
that specific group
3. A sustained /concerted military operation i.e. it’s not a onetime action but a
persistent (continuous) activity of that military
4. A symbol related to that particular group
As a rule this description of an armed group under the protocol is not considered
the take of the Courts as it only applies to the APII and not to the definition of
Common Article 3
Even though IHL prohibits the use of force in a manner not compatible with the UN
Charter it remains in force/applicable in areas where a conflict breaks out in violation of
this express violation.

RELATIONSHIP BETWEEN INTERNATIONAL HUMANITARIAN

LAW & INTERNATIONAL HUMAN RIGHTS LAW.
1. Similarities
a) The two bodies of law are complementary in that they seek to protect the life
and health of individuals
b) Both create an obligation on the part of the state to ensure respect for the rules
c) Both create an obligation on the part of the state to take practical and
legislative steps to ensure compliance with the law including enacting a penal
code and criminal legislations to give effect its provision to ensure
dissemination of information.
2. Differences
a) International Human Rights allow both a derogation (suspension) as well as
limitation (claw-back clauses) whereas International Humanitarian Law does not
allow for both derogation and limitation.

Side Note
Derogation is taken to mean the suspension of rights in cases of dire
circumstances. Where rights may be temporary waived from the people to
prevent further suffering. E.g. the suspension of the freedom of movement
during the Corona Virus Pandemic Lockdown.
Limitation is taken to mean the provision of claw black clauses in rights. Where
certain rights are to be enjoyed with certain restrictions. E.g. the freedom of
speech is limited to speeches that might involve the spread of hate speech etc.

b) In terms of scope Human Rights operate at all times i.e. in times of war and in
times of peace whereas Humanitarian Law operates solely during the period of
war.
c) Human rights apply to everyone and the primary aim is to protect individuals
from arbitrary abuses of their governments whereas humanitarian law is aimed

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 at protecting persons no longer taking part in war, civilians and hors
de combatant.
d) Implementing mechanisms of Human Rights are not are complex because they
involve international, regional and national mechanisms as there are many
bodies tasked with the monitoring and ensuring compliance whereas for
humanitarian law it has simple mechanisms and the only body with a key role is
the ICRC.

HISTORY OF INTERNATIONAL HUMANITARIAN LAW.

International humanitarian law has its origins in the customary practices of armies as
they developed over the ages and on all continents.
The “laws and customs of war”, as this branch of international law has traditionally been
called, was not applied by all armies, and not necessarily in relation to all enemies, nor
were all the rules the same.
However, the pattern that could typically be found was restraint of behaviour in relation
to combatants and civilians, primarily based on the concept of the soldier’s honour.
The content of the rules generally included the prohibition of behaviour that was
considered unnecessarily cruel or dishonourable, and was not only developed by the
armies themselves, but was also influenced by the writings of religious leaders.
Battle of Solferino, (June 24, 1859), last engagement of the second War of Italian
Independence. It was fought in Lombardy between an Austrian army and a Franco-
Piedmontese army and resulted in the annexation of most of Lombardy by Sardinia-
Piedmont, thus contributing to the unification of Italy.
After its defeat at the Battle of Magenta on June 4, the Austrian army of about 120,000
men had retreated eastward and Emperor Francis Joseph I had arrived to dismiss General
Count Franz von Gyulai and take personal command. The Franco-Piedmontese army, of
approximately equal size, under the command of Napoleon III of France and Victor
Emmanuel II of Sardinia-Piedmont, pursued the Austrians.
Both sides had inaccurate information about the other’s troop movements, and on June
24 they unexpectedly clashed, in and around Solferino, four miles southeast of
Castiglione delle Stiviere, in Lombardy, at a time when the French expected to engage
only the Austrian rear guard and the Austrians expected to engage only the French
advance units.
The Austrians lost 14,000 men killed and wounded and more than 8,000 missing or
prisoners; the Franco-Piedmontese lost 15,000 killed and wounded and more than 2,000
missing or prisoners. These heavy casualties contributed to Napoleon III’s decision to
seek the truce with Austria (see Villafranca, Conference of) that effectively ended the
second War of Italian Independence.
The bloodshed also inspired Henri Dunant to lead the movement to establish the
International Red Cross. He was an eyewitness of the Battle of Solferino (June 24, 1859),
which resulted in nearly 40,000 casualties,
Dunant organized emergency aid services for the Austrian and French wounded.

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In his memoirs titled, In Un Souvenir de Solférino (1862; A Memory of Solferino),
he proposed the formation in all countries of voluntary relief societies for the prevention
and alleviation of suffering in war and peacetime, without distinction of race or creed; he
also proposed an international agreement covering the war wounded.
In 1863 he founded the International Committee for the Relief of the Wounded (now
International Committee of the Red Cross), and the following year the first national
societies and the first Geneva Convention came into being.
Way before this, in the 16th Century there was an emergence of a doctrine known as the
“Just War” doctrine where war was considered a response to illegal aggression.
Just war theory (jus bellum justum) is a doctrine, also referred to as a tradition, of military
ethics studied by military leaders, theologians, ethicists and policy makers.
The purpose of the doctrine is to ensure war is morally justifiable through a series
of criteria, all of which must be met for a war to be considered just.
War was therefore seen as a means of enforcing the rights of the aggressed and
punishing the aggressor.
The result was that the belligerence had different rights and obligations depending on the
validity of their cause. If it was just they could use any means necessary to achieve the
desired aim.
The basis of this rule was that no one should be allowed to benefit from wrong doing i.e.
aggressors were not entitled to the protection of that regulated armed conflict.
In 1864 the 1st Geneva Convention was adopted by virtue of which war became the
subject of written law and states agreed to limit their power in times of war during armed
conflict.
The ‘Just War’ doctrine was considered incompatible with IHL because it did not allow for
reciprocity.
Linking the legality of use of force (jus ad bellum) and IHL i.e. the conduct of war (jus in
bello) was considered undesirable for two reasons.
1. Jus in bello would not apply to wars of aggression and would therefore
lead to unrestricted warfare which was not justifiable on moral and
humanitarian grounds.
2. There would be a lack of reciprocity as jus in bello would only be used to
justify the aggressors’ claim and not the state acting in self defense
For this reasons IHL does not concern itself with the rule on use of force (jus ad bellum)
but with the rules on the means and methods of war.

SOURCES OF IHL
A. Customary International Humanitarian Law
There is codification of international law relating to humanitarian law.
International humanitarian law has its origins in the customary practices of armies as
they developed over the ages and on all continents.

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The “laws and customs of war”, as this branch of international law has traditionally been
called, was not applied by all armies, and not necessarily in relation to all enemies, nor
were all the rules the same.

B. The Lieber Code 1863

The most significant landmark from the point of view of cataloguing these customs in one
document was the drafting by Professor Francis Lieber of the Instructions for the
Government of Armies of the United States in the Field, promulgated as General Order
No. 100 by President Lincoln in 1863 during the American Civil War.
The Lieber Code, as it is now known, strongly influenced the further codification of the
laws and customs of war and the adoption of similar regulations by other States
The Lieber Code was used as a basis for negotiations during the Hague Peace Conference
resulting to the Hague Conventions of 1899 – 1907.

C. Hague Conventions of 1899 – 1907.

The Hague Conventions were among the first formal statements of the laws of
war and war crimes in the body of secular international law.

While the Hague Conventions set out the rules for conducting war, the Geneva
Conventions are designed to protect the victims of war. The Hague Conventions and the
laws of war are based on the principle of reciprocity

1. Hague Convention of 1899

The First Hague Conference came from a proposal on 24 August 1898
by Russian Tsar Nicholas II. The conference opened on 18 May 1899, the Tsar's birthday.
The treaties, declarations, and final act of the conference were signed on 29 July of that
year, and they entered into force on 4 September 1900.
What is referred to as the Hague Convention of 1899 consisted of three main treaties and
three additional declarations:
a) Convention for the Pacific Settlement of International Disputes
This convention included the creation of the Permanent Court of Arbitration, which
exists to this day. The section was ratified by all major powers and many smaller
powers
b) Convention with respect to the Laws and Customs of War on Land
This voluminous convention contains the laws to be used in all wars on land between
signatories. It specifies the treatment of prisoners of war, includes the provisions of
the Geneva Convention of 1864 for the treatment of the wounded, and forbids the use
of poisons, the killing of enemy combatants who have surrendered, looting of a town
or place, and the attack or bombardment of undefended towns or habitations.
Inhabitants of occupied territories may not be forced into military service against their
own country and collective punishment is forbidden. The section was signed by all
major powers mentioned above except China.
c) Convention for the Adaptation to Maritime Warfare of the Principles of the
Geneva Convention of 22 August 1864
This convention provides for the protection of marked hospital ships and requires
them to treat the wounded and shipwrecked sailors of all belligerent parties. It too
was ratified by all major powers.

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d) Declaration concerning the Prohibition of the Discharge of Projectiles and
Explosives from Balloons or by Other New Analogous Methods
This declaration provides that, for a period of five years, in any war between signatory
powers, no projectiles or explosives would be launched from balloons, "or by other
new methods of a similar nature." The declaration was ratified by all the major powers
mentioned above, except the United Kingdom and the United States.

e) Declaration concerning the Prohibition of the Use of Projectiles with the Sole
Object to Spread Asphyxiating Poisonous Gases
This declaration states that, in any war between signatory powers, the parties will
abstain from using projectiles "the sole object of which is the diffusion of asphyxiating
or deleterious gases." Ratified by all major powers, except the United States.

f) Declaration concerning the Prohibition of the Use of Bullets which can Easily
Expand or Change their Form inside the Human Body such as Bullets with a
Hard Covering which does not Completely Cover the Core, or containing
Indentations
This declaration states that, in any war between signatory powers, the parties will
abstain from using "bullets which expand or flatten easily in the human body." This
directly banned soft-point bullets (which had a partial metal jacket and an exposed
tip) and "cross-tipped" bullets (which had a cross-shaped incision in their tip to aid in
expansion, nicknamed "Dum Dums" from the Dum Dum Arsenal in India). It was
ratified by all major powers, except the United States.

2. Hague Conventions of 1907

The Second Hague Conference, in 1907, resulted in conventions containing only few
major advancements from the 1899 Convention. However, the meeting of major powers
did prefigure later 20th-century attempts at international cooperation.
The second conference was called at the suggestion of U.S. President Theodore Roosevelt
in 1904, but it was postponed because of the war between Russia and Japan. The Second
Peace Conference was held from 15 June to 18 October 1907.
The intent of the conference was to expand upon the 1899 Hague Convention by
modifying some parts and adding new topics; in particular, the 1907 conference had an
increased focus on naval warfare.
The British attempted to secure the limitation of armaments, but these efforts were
defeated by the other powers, led by Germany, which feared a British attempt to stop the
growth of the German fleet. As Britain had the world's largest navy, limits on naval
expansion would preserve that dominant position. Germany also rejected proposals for
compulsory arbitration. However, the conference did enlarge the machinery for voluntary
arbitration and established conventions regulating the collection of debts, rules of war,
and the rights and obligations of neutrals.
The treaties, declarations, and final act of the Second Conference were signed on 18
October 1907; they entered into force on 26 January 1910.
The 1907 Convention consists of thirteen treaties—of which twelve were ratified and
entered into force—and one declaration:

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 i. Convention for the Pacific Settlement of International Disputes
This convention confirms and expands on Convention (I) of 1899. As of February
2017, this convention is in force for 102 states, and 116 states have ratified one or
both of the 1907 Convention (I) and the 1899 Convention (I), which together are
the founding documents of the Permanent Court of Arbitration.

ii. Convention respecting the Limitation of the Employment of Force for Recovery of
Contract Debts

iii. Convention relative to the Opening of Hostilities

This convention sets out the accepted procedure for a state making a declaration
of war.

iv. Convention respecting the Laws and Customs of War on Land

This convention confirms, with minor modifications, the provisions of Convention
(II) of 1899. All major powers ratified it.
v. Convention relative to the Rights and Duties of Neutral Powers and Persons in case
of War on Land

vi. Convention relative to the Legal Position of Enemy Merchant Ships at the Start of
Hostilities

vii. Convention relative to the Conversion of Merchant Ships into War-ships

viii. Convention relative to the Laying of Automatic Submarine Contact Mines

ix. Convention concerning Bombardment by Naval Forces in Time of War

x. Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention (of 6 July 1906)
This convention updated Convention (III) of 1899 to reflect the amendments that
had been made to the 1864 Geneva Convention. Convention (X) was ratified by all
major states except Britain.[26] It was subsequently superseded by Second
Geneva Convention.
xi. Convention relative to Certain Restrictions with regard to the Exercise of the Right
of Capture in Naval War

xii. Convention relative to the Establishment of an International Prize Court

This convention would have established the International Prize Court for the
resolution of conflicting claims relating to captured ships during wartime. It is the
one convention that never came into force. It was ratified only by Nicaragua.
xiii. Convention concerning the Rights and Duties of Neutral Powers in Naval War

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xiv. Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons
This declaration extended the provisions of Declaration (IV,1) of 1899 to the close
of the planned Third Peace Conference (which never took place). Among the major
powers, this was ratified only by China, Britain, and the United States.

D. Martens Clause 1899

The Martens Clause was introduced into the preamble to the 1899 Hague Convention II –
Laws and Customs of War on Land.
The clause took its name from a declaration read by Friedrich Martens, the delegate of
Russia at the Hague Peace Conferences of 1899. It reads as follows:
“Until a more complete code of the laws of war is issued, the High Contracting
Parties think it right to declare that in cases not included in the Regulations
adopted by them, populations and belligerents remain under the protection and
empire of the principles of international law, as they result from the usages
established between civilized nations, from the laws of humanity and the
requirements of the public conscience.”
— Convention with respect to the laws of war on land (Hague II), 29 July 1899.
The Clause appears in a slightly modified form in the 1907 Hague conventions:
“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 the public conscience.”
— Laws and Customs of War on Land (Hague IV), 18 October 1907

E. The Geneva Accords of 1949

While the Hague Conventions set out the rules for conducting war, the Geneva
Conventions are designed to protect the victims of war.
The humanitarian laws of the Geneva Conventions are based on two principles: the
protecting power which has been built into them and the respect for them which has
developed.
1. The Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field,
2. The Convention for the Amelioration of the Condition of the Wounded, Sick, and
Shipwrecked Members of Armed Forces at Sea,
The first two conventions elaborated on the principle that the sick and wounded have
neutral status.
3. The Convention Relative to the Treatment of Prisoners of War, and
4. The Convention Relative to the Protection of Civilian Persons in Time of War.

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The prisoner-of-war convention further developed the 1929 convention by requiring
humane treatment, adequate feeding, and the delivery of relief supplies and by
forbidding pressure on prisoners to supply more than a minimum of information.
The fourth convention contained little that had not been established in international law
before World War II. Although the convention was not original, the disregard of
humanitarian principles during the war made the restatement of its principles particularly
important and timely. The convention forbade inter alia the deportation of individuals or
groups, the taking of hostages, torture, collective punishment, offenses that constitute
“outrages upon personal dignity,” the imposition of judicial sentences (including
executions) without due-process guarantees, and discriminatory treatment on the basis
of race, religion, nationality, or political beliefs
In the decades following World War II, the large number of anticolonial and
insurrectionary wars threatened to render the Geneva Conventions obsolete.
In 1977, after four years of Red Cross-sponsored negotiations, the two branches of law
were merged with the addition of two additional protocols to the 1949 conventions,
covering both combatants and civilians, they were approved in 1977.

Additional Protocol I
The first, Protocol I, extended protection under the Geneva and Hague conventions to
persons involved in wars of “self-determination,” which were redefined as international
conflicts.
The protocol also enabled the establishment of fact-finding commissions in cases of
alleged breaches of the convention.

Additional Protocol II
The second protocol, Protocol II, extended human rights protections to persons involved
in severe civil conflicts, which had not been covered by the 1949 accords.
It specifically prohibited collective punishment, torture, the taking of hostages, acts of
terrorism, slavery, and “outrages on the personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form of indecent assault.

Additional Protocol III

Protocol III is a 2005 amendment protocol to the Geneva Conventions relating to the
Adoption of an Additional Distinctive Emblem. Under the protocol, the protective sign of
the Red Crystal may be displayed by medical and religious personnel at times of war,
instead of the traditional Red Cross or Red Crescent symbols

Limits of IHL
1. IHL does not seek to prevent the use of violence
2. It cannot protect every person affected in an armed conflict
3. It does not prevent any person from overcoming the enemy
4. It presupposes that the parties to an armed conflict have rational aims and that those
aims are not inconsistent with IHL

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