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).