2nd Lecture Notes on The Concept of IHL

Scopes & Fundamental Principles.

“The wide range of parties involved in an armed conflict sometimes makes it hard to determine the status of the protection afforded by international humanitarian law.”

When does the application of international humanitarian law properly begin and end in modern conflicts?

Why Armed Conflict?• Reasons are multidimensional: Political, social, economic, cultural identity,

ideology and politics and to capturing over the resources.• The denial of fundamental rights relating to employment, housing, food or

the respect for cultural life, and large-scale discrimination and exclusion from the decision-making processes of society are the root causes of many grave crises today.

• Revolutions with aims and ambitions for greater political, social and economic transformation.

• To change regime: dictator to democratic or monarchy to republican like ours.

• Who are we? People define themselves in terms of ancestry, religion, language, history, values, customs, and institutions today. (S.P. Huntington.)

• They identify with cultural groups; tribes, ethnic groups, religious communities, nations and at the broad level, civilizations. (Huntington)

• Today, people use politics not just to advance their interests but also to define their identity.

Objectives of the IHL• IHL is a set of rules which seek to limit the effects of armed conflicts.• To respect for human dignity, humane treatment and minimize the

unnecessary suffering.• 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, major objective of the IHL

are to provided protection during the conflict: • 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 else IHL Covers/Scope?• The IHL Covers mainly three types of armed conflict: (1) war; (2) civil war;

and (3) armed hostilities short of war. In Broad sense: • The IHL covers and regulates all kinds of armed conflicts: International

and non-international, civil strife to riots and public disturbances.• Protecting those who are not, or are no longer, directly participating in

hostilities ; and• Regulating the means of warfare – in particular weapons – and methods

of warfare, such as military tactics.• IHL protects/Covers civilians and medical and religious military personnel.

It also protects those who have ceased to take part, such as wounded, and sick combatants, and prisoners of war.

• It protects wounded and sick (Convention I), the Wounded and sick at Sea (Convention II), POW (Convention III), and Civilian Persons in times of War (Conventions IV).

• People are fighting against racist regime, colonial and foreign Dominations, (Additional Protocol I) and Internal armed conflict. (Additional Protocol II

Cont.. Scope of IHL• The constant development and increasing complexity that have

characterized forms of armed conflict since the beginning of the 21st century raise many questions about the current scope of application of international humanitarian law.

• The nature, reasons and aims of the conflict in national and international arena is changing every day. A few big questions must asked:

- In what circumstances is there a situation of armed conflict? When can it be said that a conflict begins or ends?

• A number of conflicts nowadays can be said to have multiple implications for many different regions of the world:

- How are we to consider the application of international humanitarian law in such cases?

IHL and Human RightsHuman Rights

• Existence of rights possessed by all individuals in all situations.

• Developed within UN system.• It derived through the Charter

of the UN, and UDHR etc.• Different means of

enforcement.• However, both share a similar

goals , namely, respect for, and dignity of, human persons

• Both dimensions of legal rules/bodies must be understood interchangeable, and interconnected

IHL• Applies only in certain

specific cases (armed conflicts, civil strife and riots)

• IHL Developed outside, primarily, through ICRC

• Hague and Geneva Conventions…

• Different Means of organs of Enforcement

• Many provisions of the both have status of jus cogens.

• Two-parts of the same coin!

Fundamental Principles of IHL• Underlying fundamental principles of the IHL are the fundamental

tenets of humanity, humane treatment, respecting inherent dignity of the human persons and

• Most importantly, it is the prohibition on outrages upon personal dignity in times of conflict.

- There are six cardinal principles of the IHL:1. Principle of Distinction: Parties have the obligation to distinguish

between combatants and civilians and civilian objects. It prohibits attacks against civilians and indiscriminate attacks that cause disproportionate civilian injury. Attacks may also only be launched against military objectives, and not civilian locations or objects such as public buildings, school or hospitals. Civilians may not be directly attacked.

2. Principle of unnecessary suffering: This prohibits the use of means (Weapons) and Methods (Tactics) of warfare that are of a nature to cause suffering or injury beyond that which is required for its military necessary.

Cont.. Fundamental Principles3. Principle of Precaution: This the obligation for countries to take all the feasible precautions to avoid injury or loss to the civilian population.4. Principle of military necessity: While it is legitimate to use military force to defeat one’s military objective, military force must not be disproportionate or cause superfluous injury or unnecessary suffering beyond that which is necessary to achieve a concrete military advantage.5. Principle of Proportionality: strike a balance between two diverging interests, one dictated by considerations of military necessity and the other by the requirements of humanity. Armed force should be adequate to destroy a given military objective without resulting in excessive civilian victims and damages.6. Principle of Protection: The civilian objects indispensable for the survival of civilian population must be protected. It is prohibited to attack or destroy these objects

Some of the Key Rules1. Protections afforded to civilians and persons hors de combat: the

guiding principle is one of humane treatment. This guarantees such prohibitions as violence of life and person, outrages upon personal dignity, the taking hostages, collective punishments, slavery and forcible displacement.

- hors de combat: outside of combat; primarily military personnel no longer fighting due to sickness, injury or capture)

2. Targeting: feasible precautions must be taken to avoid injury to the civilian population and damage to civilian objects. Indiscriminate attacks are strictly prohibited.

3. Means and methods of Combat: Some weapons are specifically prohibited, such as poison, biological and bacteriological weapons, gas and other chemical weapons.

- Weapons that are indiscriminate by nature or are of a nature to cause unnecessary suffering are similarly prohibited.

- It is prohibited to kill those who have expressed a desire to surrender, and to make improper use of flags and uniforms.