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JUS1730/5730 International Humanitarian Law (the Law of Armed Conflict), autumn 2014
Lecture 1, 28 August 2014
Kjetil Mujezinović [email protected]
Gentian [email protected]
Structure of the current lecture
1. Introduction to the course (KML)2. Introduction to international humanitarian law (KML)
1. Terminology and related areas2. Jus ad bellum and jus in bello3. Main sources of IHL4. Scope of application
3. Main principles of IHL (GZ)
Practical course information
• JUR1730/JUS5730 International humanitarian law (the law of armed conflict)
http://www.uio.no/studier/emner/jus/jus/JUS5730/h14/index.html
• Autumn 2014:– Time and place for teaching and exam– Syllabus (achievement requirements)– Course outline; style of teaching– Student participation?
Useful websites• Treaties: http://www.icrc.org/ihl• Commentaries to GCs and GC APs:
http://www.icrc.org/ihl.nsf/CONVPRES?OpenView• Other useful links:
– ICRC Review: http://www.icrc.org/eng/review– ICRC databases on IHL:
http://www.icrc.org/eng/resources/ihl-databases/index.jsp– Introduction to Public International Law research:
http://www.nyulawglobal.org/Globalex/Public_International_Law_Research1.htm
– Central Human Rights Sources on the Internet: http://www.jus.uio.no/smr/tjenester/bibliotek/human-rights-sources.pdf
Terminology and related areas
International humanitarian
law (IHL)
Law of armed conflict (LOAC)
Jus in bello
International criminal law
Human rights law
International refugee law
General international
law
Jus ad bellum
Terminology and related areas
International humanitarian
law (IHL)
International criminal law
Sanctions for violations of certain violations of
international humanitarian law
Lectures 7 and 8: Implementation, enforcement, responsibility
JUS5570 International Criminal Law
(spring semester)
Terminology and related areas
International humanitarian
law (IHL)
International refugee law
Armed conflicts generate large numbers of refugees and IDPs
Some rules in IHL: Protection of civilians
JUS5530 Refugee and Asylum Law
(spring semester)
Terminology and related areas
International humanitarian
law (IHL)
Human rights law
Considerable overlap
Lecture 9: The relationship with other
legal regimes
Terminology and related areas
International humanitarian
law (IHL)
General international
law
IHL as part of international law
Statute of the ICJ, Art. 38:(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
IHL as part of international law
Traditionally: International law regulates the
relationship between States
States are the core subjects of
international law…
…but individuals may have rights and duties
IHL is a good example
IHL is a part of international law
…but with some special characteristics
• Sources• Methods• Implementation• Enforcement• …
Individuals have both rights and obligations
Sources
Method: Interpretation
Vienna Convention on the Law of Treaties Art. 31. General rule of interpretation.1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Art. 32. Supplementary means of interpretation.Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or unreasonable
Vienna Convention on the Law of Treaties Art. 31. General rule of interpretation.1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Art. 32. Supplementary means of interpretation.Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or unreasonable
Method: Interpretation
Jus ad bellum and jus in bello
International humanitarian
law (IHL)
Jus ad bellum
Jus ad bellum•To which extent the use of military force against another state is allowed•UN Charter Article 2.4: The prohibition against use of force•ICC Statute: Crime of aggression•Two (three?) exceptions
Jus in bello•Conduct in armed conflicts•Protection of civilians and individuals hors de combat•Protection of combatants•Means and methods of warfare•Relationship to neutral states
No direct link:•Violations of jus ad bellum do not justify violations of jus in bello, or vice versa•Violations of jus ad bellum do not entail violations of jus in bello, or vice versa
Sources: An introductory point
Recall ICJ Statute,
Art. 38
Conventions, custom, general
principles
Principles play an important role in IHL
Principles on different levels
Operational principles
Dominant principles
Fundamental principles Next hour
Main sources of IHL
ConventionsInternational
customary law
«Geneva law» «Hague law»
«Hague law»
• The four Geneva Conventions (1949)1. Wounded and sick soldiers on land
2. Wounded and sick soldiers on sea
3. Prisoners of war
4. Protection of civilians and rules pertaining to occupation
• The two additional protocols (1977)1. International armed conflicts
2. Non-international armed conflicts
«Geneva law»
Primarily rules on protection
Primarily rules on means of war
• The St. Petersburg Declaration 1868• Hague Regulations of 1899 and 1907• Gas protocol of 1925• NPT (non-proliferation of nuclear weapons) 1968 • Biological weapons 1972• Convention on inhuman weapons (CCW) 1980• Chemical weapons 1993• Anti Personnel Mines 1997• Cluster Munitions 2008
International customary law
Statute of the ICJ, Art. 38:(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Opinio jurisUsus
Three volumes in 2005:1) 161 rules 2 and 3) State practice
Scope of application
of IHL
Material scope of
application
Temporal scope of
application
Spatial scope of
application
Personal scope of
application
Personal scope of
application
To which subjects does
IHL apply?
Who have obligations under IHL?
Who have rights
under IHL?
StatesNon-state
armed groupsIndividuals
International organisations
Temporal scope of
application
When does the applicability of
IHL begin?
When does the applicability of
IHL end?
The first hostile act in the armed conflict that puts at stake a provision in IHL
Objective vs. subjective
When a treaty enters into force
for a specific State
Material scope of application
The end of military operations
Spatial scope of
application
The principle of effectiveness
The territory of belligerent States
Actual hostilities
Occupied territories
The principle of unity of territory
Material scope of
application
• International armed conflicts and occupation
• Non-international armed conflicts (two categories)
• Internal disturbances, riots, etc., not amounting to armed conflicts
• Peace
Qualification of conflicts,lecture # 2
Contact information:
Kjetil Mujezinović LarsenProfessor of Law, the Norwegian Centre for Human Rights
Phone: +47 22 84 20 83E-mail: [email protected]