2nd Lecture Notes on The Concept of IHL

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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?

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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.

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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.

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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

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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?

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IHL and Human Rights

• Human Rights

• IHL

• 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

• 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!

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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
• 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.
• 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.

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Cont.. Fundamental Principles

• 3. 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 ones
  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

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Some of the Key Rules

• 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.