INTERNATIONAL INSTITUTE OF HUMAN RIGHTS Strasbourg 42nd Annual Study Session July 2011 INTERNATIONAL HUMANITARIAN LAW Dr Ben

Clarke Legal Adviser, Unit of Thematic Advisers, Legal Division INTERNATIONAL COMMITTEE OF THE RED CROSS Geneva
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ICRC Overview
The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization. Its mission is exclusively humanitarian: to protect the lives and dignity of victims of war and internal violence and to provide them with assistance. Activities: Direction and coordination the international relief activities conducted by the Movement in situations of conflict. Endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles.

ICRC: Global Operations

In 2010, the ICRC: distributed food to over 4.9 million people worldwide, mainly IDPs and residents, provided essential household and hygiene items to over 4.7 million enabled 3.2 million people to benefit from sustainable food production programmes or micro-economic initiatives. helped some 10 million people through water, sanitation and construction activities. Visited 500,928 detainees, 30,674 were monitored individually, in 1,783 places of detention. The aim of such visits is to ensure:

respect for the life and dignity of the detainees and to prevent torture, ill-treatment or abuse; conditions of detention are decent and detainees can exchange news with their families, as required by IHL.

world wide the movement continued to promote knowledge and understanding of international humanitarian law around the world, especially among fighters.

PART ONE GENERAL INTRODUCTION, DEFINITIONS AND FIELDS OF APPLICATION Do we need international humanitarian law, since the UN Charter outlaws war?
Reality:

wars continue to happen, and the rights of national self-defence and collective security exist

IHL is a balance between military necessity and humanitarian principles IHL evolves to meet new challenges:
new

battlefield and technological developments.

1. DEFINITIONS What is International Humanitarian Law?

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.

IHL is therefore composed of two types of rules:

Rules which limit the right of the parties to use means and methods of war; Rules which protect the persons and goods in times of armed conflict.

International humanitarian law (IHL) is often called "law of armed conflict" or "law of war".

1. DEFINITIONS
1.2 Law of Geneva
Rules

of international humanitarian law concerning the right of the victims to protection. of international humanitarian law concerning the conduct of hostilities.

1.3 Law of the Hague

Rules

2. HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW 2.1

Law of Geneva

1859 Battle of Solferino

Henry Dunant (Swiss trader) was in north of Italy (in order to meet Napoleon III) just after a battle between France and Austria. 50,000 of 300,000 soldiers were killed or wounded on that day. Many died because the medical army corps were not effective. Dunant made two proposals, volunteers to help the wounded and sick, and new rules on war

1863 Founding of the International Committee of the Red Cross and the first National Red Cross Societies 1864 First Geneva Convention (annex 1.1) 1906 Revision of the First Geneva Convention 1929 Revision of the First Geneva Convention Geneva Convention relative to the treatment of prisoners of war

2.1 Law of Geneva

1949 Four Geneva Conventions:
Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (I) Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of armed forces at sea (II) Convention relative to the treatment of prisoners of war (III) Convention relative to the protection of civilian persons in time of war (IV)

By 2011, there were 194 Parties to the Four Geneva Conventions of 1949. These treaties have universal application. The two 1977 Protocols additional to the Geneva Conventions have 171 and 166 parties respectively, and the Third Protocol to the Geneva Conventions of 2005 has 56 parties.

 2.3 The Two Protocols additional to the Geneva Conventions of 1977 Over 160 accessions to both Additional Protocol III regarding the emblem (details on use of the emblem to be covered later)

2.2 Law of the Hague

1863 Lieber Code 1868 Declaration of St. Petersburg 1899 Hague Conventions 1907 Hague Conventions 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954.
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2.2 Law of the Hague

1977Protocols additional to the Geneva Conventions 1980Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and newest protocol V on Explosive Remnants of War 1993Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction 1997Prohibition of anti-personnel mines 2008, Convention on Cluster Munitions, prohibits the use, development, production, stockpiling and transfer of such weapons.

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Development of Emblems 1864-2005

1864 Convention, art. 7: Both flag and armlet

Israel's rescue society (Magen David Adom) can use the Star
of David inside Israel.
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shall bear a red cross on a white ground, confirmed in 1906 at the Geneva Revision Conference. 1929, art. 19: recognition of the Red Crescent and the Red Lion and Sun Recognition not granted to Red Shield of David 1931 or Red Archway in 1935 Conventions 1949 and Add. Protocols 1977: confirm compromise of 1929 2005: Red Crystal (APIII)

Additional Protocol III to the Geneva Conventions (2005)

Red Cross and Red Crescent remain unchanged New additional distinctive Emblem (Red
Crystal)

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3. INTERNATIONAL HUMANITARIAN LAW AND THE USE OF INTER-STATE FORCE 3.1 The distinction between "jus ad bellum" and "jus in bello"

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3. USE OF FORCE
3.2 The "jus ad bellum" The UN Charter allows the use of force in the following cases:
Self-defence Actions

of the Security Council on the basis of Chapter VII of the Charter

Not an IHL question, however

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3.3 The "jus in bello" "Jus in bello" = International humanitarian law. It applies in all armed conflicts and must always be respected by all the parties to an armed conflict, to the extent that the Parties are bound by treaty or custom by the specific provision of IHL

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4. INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW

4.1 Similarities
Both

aimed at protecting the human person Both contain mix of rights and prohibitions

4.2 Differences Temporal jurisdiction HR wider, IHL limited to armed conflict Derogations only allowed in IHRL 4.3 The Merger Nuclear Weapons Case and Legal Consequences Case

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IHL and Human Rights Law Differences

International human rights law
Applies at all times
Applies only in armed conflict (Exception: Peace-time obligations)

International humanitarian law

Binding on States and Non-state Actors

Only binding on States

Governs relations between States and individuals Governs relations between parties to the conflict

Derogations in times of emergency possible Scope of extra-territorial application disputed Right to life strongly protected (but not absolute!) Detention only pursuant to judgment

Derogations not possible Extra-territorial application unquestioned Right to life compromised POWs and civilian internees may be detained. 18

Human Rights and IHL

HUMAN RIGHTS
Freedom of Expression Freedom of Assembly Freedom of Movement

COMPLEMENTARY PROVISIONS
Prohibition against Torture Prohibition against illtreatment Fair Trial

IHL
Protection of wounded, sick and shipwrecked Protection of POWs and civilians Conduct of Hostilities

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4. HR and IHL
HR applies:
in situations that do not reach the threshold of armed conflict (e.g. during policing and law enforcement operations);

IHL applies during armed conflict

(e.g.

to military operations by armed forces engaged in active hostilities).

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4. IHL and HR
Hard Core of IHL and HR contain, eg Discrimination GC a3.1 Life GC a3.1 Torture GC a3.1 Slavery GC AP II, a4

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5. SCOPE OF APPLICATION of IHL 5.1 International armed conflicts

International armed conflicts are governed by: The Four Geneva Conventions of 1949 Protocol I of 1977

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International armed conflicts

Duration of application Wars of national liberation
are

international armed conflicts: Article 1(4) API

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5. SCOPE OFAPPLICATION OF IHL

5.2 Non-international armed conflicts

Non-international armed conflicts are governed by: Article 3 common to the Four Geneva Conventions of 1949 (annex 2.3) Protocol II of 1977 (annex 2.4)

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Common Article 3: NIAC

The only conditions laid down in Article 3 are: Existence of an armed conflict; Absence of AC of an international character occurring in the territory of a High Contracting Party Armed conflict is not defined in the text so it is by the interpretation that it is identified.

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Protocol II
Protocol II develops and supplements common Article 3. Its scope has been defined more precisely, and rules of conduct adopted go beyond the statement of fundamental principles in Comm Article 3. A level higher organization of forces is required before APII applies.

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Insurgents are bound by IHL

When Common Article 3 speaks of parties to the conflict, it addresses the insurgents as well as govt forces. APII also applies to insurgents without formal acceptance they are bound by the initial commitment of the state. In practice, it is common that the rebel authorities shall make public statements of intent to apply the relevant IHL. This practice is facilitated by the ICRC as it is a way to confirm or clarify the responsibility to assure the rebels. International case law and the Rome Statute recognises the automatic applicability of IHL to insurgent forces.

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5. SCOPE OF APPLICATION OF IHL

5.3 Problems of legal qualification Internationalized internal armed conflicts At what point does an internal armed conflict become an international one?
armed

conflict between State Parties for a third State to become a Party to the conflict requires that its agents participate directly in hostilities

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When does IHL Apply?

IHL applies during "armed conflict"

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IHL Applies During "Armed Conflict"

International Armed Conflict Non-International Armed Conflict "Internationalised" Non-International Armed Conflict

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International Armed Conflict =

STATE A

STATE B

"all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them" (Common Art. 2, GC I IV)
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International Armed Conflict =

STATE A

STATE B B STATE

"all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance" (Common Art. 2, GC I IV)
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International Armed Conflict =

STATE A

colonial domination alien occupation racist regimes

"armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist rgimes in the exercise of their right of selfdetermination" (Art. 1(4), AP I)
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Non-International Armed Conflict =

Armed Group 1

Armed Group 2

Government A

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties" (Common Art. 3, GC I IV)
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Non-International Armed Conflict =

governmental zone

STATE A

rebel zone

"all armed conflictswhich take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and conerted military operations and to implement 35 this Protocol" (Art. 1(1), AP II)

"Internationalised" Non-International Armed Conflict =

STATE A
SUPPORT

INTERNAL
L NA R

Rebels of State A
SUPPORT

T IN

E NT I AT IO NA L AL N ER

IN TE

RN

STATE B

INTERNATIONAL

STATE C

internal conflict characterized by the intervention of the armed forces of at least one foreign power
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6. Sources of IHL: Treaty, Custom and General Principles of Law

Customary rules of international law are binding on all non-persistent objectors, even those who have not acceded to a treaty with customary provisions in it. The failure of the 1977 Additional Protocols to become universally accepted raised questions about the extent to which the contents of these treaties were binding under international law. In 2005, the ICRC launched its Customary International Humanitarian Law Study (discussed below)

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Treaty Law
Problems with Treaty Law
Not all states are party to IHL treaties; Reservations to ratification or accession create multiple regimes; Not all relevance issues are addressed in treaties especially in NIACs; States can revoke consent to be bound.

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Customary Law
Custom versus Treaty:
Custom:
binds

all states; no reservation to a custom; might cover areas not addressed in treaty; Not possible to denounce a custom.

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ICRCs Study on Customary International Humanitarian Law

Volume I: Rules 161 Rules

Volume II: Practice, part 1

Volume II: Practice, part 2

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Of the 161 rules identified:

Content of the ICRC Study

12 pertain only to International Armed Conflicts; 2 pertain only to Non-international Armed Conflicts; 147 pertain both to International and Non-international Armed Conflicts.
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Customary Law
Article 38(1)(b), Statute of the International Court of Justice
The Court whose function is to decide in accordance with international law disputes submitted to it, shall apply: a) b) international custom, as evidence of a general practice accepted as law; c) d)

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PART ONE
End of Part One Overview

Why is IHL necessary? Definitions, Law of Geneva, Hague, Emblems Treaty / custom Fields of Application IAC, NIAC, CA3, INIAC Use of Force, ad bello, in bellum Human Rights and IHL, similarities, differences

Part Two (tomorrow): The Conduct of Hostilities

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