2015-16

Implementation
of International
Humanitarian
Law

Sahil Ahmed
B.A, LLB. (Hons.), Vth Semester
Faculty of Law, Jamia Millia Islamia
University, New Delhi

Acknowledgement
I take this opportunity to thank all who have
been of immense help to me while writing this
research paper. I am extremely indebted to Mr.
Sourabh Mishra at Faculty of Law, Jamia Millia
Islamia University, New Delhi, for her valuable
guidance, timely advice and constant support
while writing this work, which has helped me to
streamline my thoughts and writing.
Over and above all, I owe more than I could
express my immense debt of gratitude to my
parents, who stood by me all along and without
whose moral and financial support I would not
have been what I am today.
I also extend my deep sense of gratitude to
the learned authors whose works I have
consulted and referred and which has been
enlisted in the Bibliography. Last but not least, I
extend my sincere thanks to all my friends who
have given me a lot of confidence while I was
working on this topic.

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Sahil Ahmed

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Synopsis
Introduction
Implementation of International Humanitarian Law
What is International Humanitarian Law?
Where did international humanitarian law originate?
Where is international humanitarian law to be found?
When does international humanitarian law apply?
What does international humanitarian law cover?
What is protection?
What restrictions are there on weapons and tactics?
Is international humanitarian law actually complied with?
What should be done to implement the law?
Origin of International Humanitarian Law
How and why did the Convention come to life?
The birth of modern International Law
The Progressive Development of IHL (1864 2012)
The Standing of IHL within Public International Law
The Distinction between Jus ad Bellum and Jus in Bello
Sources of International Humanitarian Law
The Material Field of Application of IHL: When Does IHL
Apply?
International armed conflict
Non-international armed conflict
Other situations
Basic Rules of IHL
Document attached: National Enforcement of Humanitarian
Law, Information Kit, ICRC
Bibliography

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Introduction
International humanitarian law also known as the Law of Armed Conflict or
the Law of War (ius in bello) applies to armed conflicts and has a two-fold
purpose: to regulate the conduct of hostilities and to protect the victims of
armed conflicts. It does not, however, answer the question of whether or not a
particular war is lawful (ius ad bellum). This is dealt with by the Charter of the
United Nations (UN). International humanitarian law applies to all types of
armed conflicts, whether lawful or not, and must be respected by all parties to
the conflict.
A substantial part of international humanitarian law, notably concerning the
conduct of hostilities, was elaborated at the international peace conferences of
1899 and 1907 in The Hague (Hague Law). The participants adopted a
number of declarations and agreements intended to impose limits on the means
and methods of warfare, such as the Hague Conventions of 1899 and 1907
concerning the Laws and Customs of War on Land, the various agreements on
the conduct of war at sea of 1907 and the declarations of 1899 banning the use
of poison gas and dumdum bullets.
Provisions for the protection of victims of armed conflicts (Geneva Law) are
contained in the four Geneva Conventions of 1949, which protect the following:
Wounded and sick in armed forces in the field (First Convention)
Wounded, sick and shipwrecked armed forces at sea (Second Convention)
Prisoners of war (Third Convention)
Civilians in time of war (Fourth Convention)
The Geneva Conventions of 1949 were supplemented in 1977 by two
Additional Protocols on the protection of victims of international armed
conflicts and on the protection of victims of non-international armed conflicts.
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In 2005, a third Additional Protocol on the adoption of an additional emblem

was adopted.
Since the adoption of the two Additional Protocols of 1977, which have updated
the rules governing the conduct of hostilities, this strict differentiation between
Hague Law and Geneva Law is no longer pertinent.
International humanitarian law applies only to armed conflicts, whether
international or non-international, although there are far more rules that apply to
international armed conflicts than to non-international armed conflicts. In
addition, there is another area of international law, known as customary
international law, which is applicable not only to international armed conflict,
for which it was originally developed, but also to non-international armed
conflicts.
Although international humanitarian law is intended mainly for States and
parties to a conflict (e.g. armed groups), many of its provisions must also be
respected by individuals. States are obliged to respect the norms, to suppress
any violations, and either themselves prosecute persons responsible for grave
breaches, in particular of war crimes, or extradite such persons. If a State is
either unwilling or unable to undertake prosecutions then, as appropriate, the
responsibility passes to the International Criminal Court in The Hague.
Furthermore, the international community has set up international ad hoc
tribunals for the prosecution of crimes committed in the context of specific
conflicts (e.g. the International Criminal Tribunals for the former Yugoslavia
and

for

Rwanda).

The parties to a conflict must respect international humanitarian law in all

circumstances and regardless of the behaviour of the other side. A State Party
cannot evade its own obligations arguing that the other Party is failing to uphold
international humanitarian law. Thus a State Party accused of a violation cannot
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justify its actions on the grounds that the other Party committed a similar
violation. The suspension clause that generally applies in treaty law has no
validity here. Furthermore, States remain bound by the Conventions even if the
enemy has not acceded to them.

Implementation of International
Humanitarian Law
What is International Humanitarian Law?
International humanitarian law is a set of rules which seek, for humanitarian
reasons, to limit the effects of armed conflict. It protects persons who are not or
are no longer participating in the hostilities and restricts the means and methods
of warfare. International humanitarian law is also known as the law of war or
the law of armed conflict.
International humanitarian law is part of international law, which is the body of
rules governing relations between States. International law is contained in
agreements between States treaties or conventions , in customary rules,
which consist of State practise considered by them as legally binding, and in
general principles.
International humanitarian law applies to armed conflicts. It does not regulate
whether a State may actually use force; this is governed by an important, but
distinct, part of international law set out in the United Nations Charter.
Where did international humanitarian law originate?
International humanitarian law is rooted in the rules of ancient civilizations and
religions warfare has always been subject to certain principles and customs.
Universal codification of international humanitarian law began in the nineteenth
century. Since then, States have agreed to a series of practical rules, based on
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the bitter experience of modern warfare. These rules strike a careful balance
between humanitarian concerns and the military requirements of States.
As the international community has grown, an increasing number of States have
contributed to the development of those rules. International humanitarian law
forms today a universal body of law.
Where is international humanitarian law to be found?
A major part of international humanitarian law is contained in the four Geneva
Conventions of 1949. Nearly every State in the world has agreed to be bound by
them. The Conventions have been developed and supplemented by two further
agreements: the Additional Protocols of 1977 relating to the protection of
victims of armed 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 Weapon 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.

Many provisions of international humanitarian law are now accepted as

customary law that is, as general rules by which all States are bound.
When does international humanitarian law apply?
International humanitarian law applies only to armed conflict; it does not cover
internal tensions or disturbances such as isolated acts of violence. The law

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applies only once a conflict has begun, and then equally to all sides regardless
of who started the fighting.
International humanitarian law distinguishes between international and noninternational armed conflict. International armed conflicts are those in which at
least two States are involved. They are subject to a wide range of rules,
including those set out in the four Geneva Conventions and Additional Protocol
I.
Non-international armed conflicts are those restricted to the territory of a single
State, involving either regular armed forces fighting groups of armed dissidents,
or armed groups fighting each other. A more limited range of rules apply to
internal armed conflicts and are laid down in Article 3 common to the four
Geneva Conventions as well as in Additional Protocol II. It is important to
differentiate between international humanitarian law and human rights law.
While some of their rules are similar, these two bodies of law have developed
separately and are contained in different treaties. In particular, human rights law
unlike international humanitarian law applies in peacetime, and many of its
provisions may be suspended during an armed conflict.
What does international humanitarian law cover?
International humanitarian law covers two areas:
The protection of those who are not, or no longer, taking part in fighting;
Restrictions on the means of warfare in particular weapon and the
methods of warfare, such as military tactics.

What is protection?

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International humanitarian law protects those who do not take part in the
fighting, such as civilians and medical and religious military personnel. It also
protects those who have ceased to take part, such as wounded, shipwrecked and
sick combatants, and prisoners of war.
These categories of person are entitled to respect for their lives and for their
physical and mental integrity. They also enjoy legal guarantees. They must be
protected and treated humanely in all circumstances, with no adverse
distinction.
More specifically: it is forbidden to kill or wound an enemy who surrenders or
is unable to fight; the sick and wounded must be collected and cared for by the
party in whose power they find themselves. Medical personnel, supplies,
hospitals and ambulances must all be protected.
There are also detailed rules governing the conditions of detention for prisoners
of war and the way in which civilians are to be treated when under the authority
of an enemy power. This includes the provision of food, shelter and medical
care, and the right to exchange messages with their families.
The law sets out a number of clearly recognizable symbols which can be used to
identify protected people, places and objects. The main emblems are the Red
Cross, the Red Crescent and the symbols identifying cultural property and civil
defence facilities.
What restrictions are there on weapons and tactics?
International humanitarian law prohibits all means and methods of warfare
which:
Fail to discriminate between those taking part in the fighting and those,
such as civilians, who are not, the purpose being to protect the civilian
population, individual civilians and civilian property;
Cause superfluous injury or unnecessary suffering;
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 Cause severe or long-term damage to the environment.

Humanitarian law has therefore banned the use of many weapons, including
exploding bullets, chemical and biological weapons, blinding laser weapons and
anti-personnel mines.
Is international humanitarian law actually complied with?
Sadly, there are countless examples of violation of international humanitarian
law. Increasingly, the victims of war are civilians. However, there are important
cases where international humanitarian law has made a difference in protecting
civilians, prisoners, the sick and the wounded, and in restricting the use of
barbaric weapons.
Given that this body of law applies during times of extreme violence,
implementing the law will always be a matter of great difficulty. That said,
striving for effective compliance remains as urgent as ever.
What should be done to implement the law?
Measures must be taken to ensure respect for international humanitarian law.
States have an obligation to teach its rules to their armed forces and the general
public. They must prevent violations or punish them if these nevertheless occur.
In particular, they must enact laws to punish the most serious violations of the
Geneva Conventions and Additional Protocols, which are regarded as war
crimes. The States must also pass laws protecting the Red Cross and Red
Crescent emblems.
Measures have also been taken at an international level: tribunals have been
created to punish acts committed in two recent conflicts (the former Yugoslavia
and Rwanda). An international criminal court, with the responsibility of
repressing inter alia war crimes, was created by the 1998 Rome Statute.

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Whether as individuals or through governments and various organizations, we

can all make an important contribution to compliance with international
humanitarian law.

Origin of International Humanitarian Law

The main subject of this course will be the study of contemporary international
humanitarian law. Nevertheless, it is necessary to briefly examine the evolution
of that body of law. One can say that the laws of war are almost as old as war
itself. Even in ancient times, there were interesting although rudimentary
customs that today would be classified as humanitarian. It is interesting to note
that the content and aim of these customs were the same for almost every
civilization around the world. This spontaneous generation of humanitarian
standards, at different times and among peoples or states that possessed limited
means of communication with each other, is also an important phenomenon.
This phenomenon lends credence to the historical argument regarding:
The necessity of having rules that apply to armed conflicts;
The existence of a feeling in many civilizations that, under certain
circumstances, human beings, friend or foe, must be protected and respected.
Although scholars generally agree that the birth of modern IHL was in 1864,
with the adoption of the First Geneva Convention, it is also clear that the rules
contained in that Convention were not entirely new. In reality, a large amount of
the First Geneva Convention was derived from existing international customary
law. In fact, there were rules protecting certain categories of victims in armed
conflicts and customs concerning the means and methods of authorized or
prohibited combat during hostilities as early as 1000 BC.

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Although these ancient and often very rudimentary rules were not established
for humanitarian reasons, but rather for purely economic purposes, their effect
was humanitarian.
For example:
The prohibition against poisoning wells (reaffirmed in 1899 in The Hague)
was originally made in order to permit the exploitation of conquered areas;
The first reasons for the prohibition against killing prisoners (reaffirmed and
developed in the Third Geneva Convention of 1949) were to safeguard the lives
of future slaves or to facilitate the exchange of prisoners.
Such prohibitions can be found in many different civilizations, throughout the
world and throughout history. For example, in many parts of Africa there were
specific rules regarding the commencement of hostilities between different
peoples that correspond, to a large extent, to the classical European traditional
obligation of declaring war. Moreover, in a treatise called The Arts of the
War, written in 500 BC, the Chinese writer Sun Tzu, expressed the idea that
wars must be limited to military necessity, and that prisoners of war, the
wounded, the sick, and civilians should be spared. Likewise, in the Indian
subcontinent, similar rules can be found. For example, in the Code of Manu
written in 200 BC, one finds rules relating to behaviour in combat. The Code
declared that barbed or poisoned weapons were prohibited, that wounded
soldiers had to be cared for, and that surrendering combatants must be spared.
These examples of humanitarian customs in various civilizations demonstrate
that, even if the Geneva or Hague Conventions were not universal at inception,
since they were drafted and adopted by lawyers and diplomats belonging to the
European Christian culture, their sentiments are nearly universal, since the
principles they contain can be found in very different systems of thought
both European and non-European.
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The cultural history of Europe also provides examples of both barbarism and
humanity. The first significant development in respect to the law of war
occurred in 300 BC, with the Greek philosophical school called stoicism. This
school advocated a path towards humanity through understanding and
sympathy, the need to understand and respect each other.
Between the 16th and 18th centuries, in the Renaissance and Age of Reason,
---an interesting and humanitarian practice developed in Europe. Frequently,
warriors met before the hostilities and decided on guidelines to be respected
during the battle. These special agreements could, for example, establish the
observance of an armistice two days per week, the obligation to collect the
wounded, or a responsibility to release prisoners at the end of the war. Although
these agreements were concluded on an ad hoc basis, and had a limited scope of
application, such precedents played a very significant role in the creation of
IHL.
From this historical perspective developed the documented origin of IHL in the
mid-19th Century. Up to that point, the practice of the accepted rules of warfare
reflected the theories of philosophers, priests or jurists with local and special
agreements.2 However, these customs were geographically limited and there
were no international (states were not yet born) or universal rules. The first
universal treaty on Humanitarian Law is the Geneva Convention of 1864.
How and why did the Convention come to life?
The conception of IHL can be traced to the Battle of Solferino, a terrible
conflict between French and Austrian forces that took place in northern Italy in
1859. One witness of that carnage, a businessman from Geneva named Henry
Dunant, was appalled not so much by the violence of that battle, but rather by
the desperate and miserable situation of the wounded left on the battlefields.

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With the help of the local inhabitants, Dunant immediately decided to collect
and care for the wounded.
Back in Geneva, Dunant published a short book in 1862, A Memory of
Solferino, in which he vividly depicted the horrors of the battle:
When the sun came up on the twenty-fifth June 1859 it disclosed the most
dreadful sights imaginable. Bodies of men and horses covered the battlefield:
corpses were strewn over roads, ditches, ravines, thickets and fieldsThe
poor wounded men that were being picked up all day long were ghastly pale
and exhausted. Some, who had been the most badly hurt, had a stupefied look
as though they could not grasp what was said to them Others were anxious
and excited by nervous strain and shaken by spasmodic trembling. Some, who
had gaping wounds already beginning to show infection, were almost crazed
with suffering. They begged to be put out of their misery, and writhed with
faces distorted in the grip of the death struggle.1
In his book, Dunant not only described the battle, but tried to suggest and
publicize possible measures to improve the fate of war victims. He presented
three basic proposals designed to mitigate the suffering of the victims of war. To
this end he proposed:
That voluntary societies be established in every country which, in time of
peace, would prepare themselves to serve as auxiliaries to the military
medical services.
That States adopt an international treaty guaranteeing legal protection to
military hospitals and medical personnel.
That an international sign of identification and protection of medical
personnel and medical facilities be adopted.

1 A Memory of Solferino, ICRC, Geneva 1986, p. 41.

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These three proposals were simple, but they have had deep and lasting
consequences.
The whole system of National Red Cross or Red Crescent Societies (of
which there are today 188 around the world) stems from the first
proposal;
The second proposal gave birth to the First Geneva Convention in
1864;
The third proposal led to the adoption of the protective emblem of the
Red Cross or the Red Crescent.
Dunants book enjoyed enormous success throughout Europe. Although it did
not present entirely original ideas, the merit of the book is in large part due to
the timeliness of its message.
At that time, a private welfare association existed in Geneva: The Society for
the Public Good. Its President, Gustave Moynier, was impressed by Dunants
book and proposed to the members of the Society that they try to carry out
Dunants proposals. This suggestion was accepted and five members of the
Society, Mssrs. Dunant, Moynier, Dufour, Appia and Maunoir, created a special
committee [in 1863], the International Standing Committee for Aid to
Wounded Soldiers. This committee would, 15 years later, become the
International Committee of the Red Cross.
In 1863, the Committee convened military and medical experts at a conference
in Geneva. The aim of that meeting was to examine the practicability and
feasibility of the proposals made by Dunant. The results of the meeting were
encouraging, and the members of the Committee persuaded the Swiss Federal
Council to convene a diplomatic conference, whose task would be to give a
legal form to Dunants proposals.
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To this end, a diplomatic

conference was held in
1864 in Geneva and the
16

states

finally

represented

adopted

the

Geneva Convention of
22nd August 1864 for the
Amelioration
Condition

of
of

the
the

Wounded in Armies in
the Field. Its result was
an

international

treaty

The original document of the first Geneva

Convention from 1864, on loan to the International
Red Cross and Red Crescent Museum in Geneva,

open to universal ratification (i.e. an agreement not limited to a specific region

or conflict, with binding effects on the States that would formally accept it) in
which states agreed to voluntarily limit their own power in favour of the
individual. For the first time, armed conflict became regulated by written,
general law.
The Birth of Modern International Humanitarian Law
In ten concise articles, the First Geneva Convention gave a legal format to
Dunants proposals and established a special status for medical personnel. The
fact that this conference lasted less than 10 days provides a clear indication of
the general support given to the propositions.
Of course, this original convention has been replaced by more modern and
comprehensive treaties. However, it illustrates in a concise manner the central
objectives of humanitarian law treaties.

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Beginning in 1866, the Geneva Convention proved its worth on the battlefield.
By 1882, 18 years after its adoption, it had been universally ratified.2

The Progressive Development of IHL

(1864 2012)
The three main characteristics that marked this evolution are:
a) The constant enlargement of the categories of war victims protected by
humanitarian law (military wounded; sick and shipwrecked; prisoner of
war; civilians in occupied territories; the entire civilian population), as
well as the expansion of the situations in which victims are protected
(international and non-international armed conflicts);
b) The regular updating and modernization of the treaties to account for the
realities of recent conflicts. For example, the rules protecting the
wounded adopted in 1864 were thus revised in 1906, 1929, 1949, and
1977 (critics have therefore accused IHL of being always one war
behind reality).
c) Two separate legal currents have, up until 1977, contributed to this
evolution:
i. The Geneva Law, mainly concerned with the protection of the
victims of armed conflicts- i.e. the non-combatants and those who
ii.

no longer take part in the hostilities; and

The Hague Law, whose provisions relate to limitations and
prohibitions of specific means and methods of warfare.

These two legal currents were practically merged with the adoption of the two
Additional Protocols of 1977.
2 Under Art 2 of the 1969 Vienna Convention on the Law of Treaties, ratification
() mean[s] in each case the international act so named whereby a State
establishes on the international plane its consent to be bound by a treaty.
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NB: Geneva Law Treaties are reproduced in bold; Hague Law instruments in
normal font.
*The Conventions currently in force have replaced the older Geneva Conventions.

Strictly speaking, the Hague Current originated in the Declaration of St

Petersburg, which was proclaimed by a Conference convened by Alexander III,
the Tsar of Russia in 1868. The Declaration prohibited the use of explosive
bullets and enunciated some basic principles relating to the conduct of
hostilities.
In 1899 the so-called First Peace Conference was convened in the
Netherlands by another Tsar, Nicholas II, in The Hague. That Conference
adopted several Conventions whose general goal was to limit the evils of war.
Among other things, these Conventions prohibited:
The launching of projectiles from balloons;
The use of poisonous gases;
The use of dumdum bullets.
The main achievement of this Conference was the adoption of a principle
named for its initiator, F. Martens, the legal adviser of the Russian Tsar. The
Martens Clause says that:
until a more complete code of the law of war has been issued, the High
Contracting Parties deem it expedient to declare that, in cases not included in
the Regulations adopted by them, the inhabitants and the belligerents remain
under the protection and the rule of the principles of the law of nations, as the
result from the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience.3
3 This Martens Clause was developed and reaffirmed in subsequent treaties; e.g.
in Article 1 paragraph 2 of Additional Protocol I of 1977 and preambular
paragraph 4 of Additional Protocol II of 1977.
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Another important success of the 1899 Conference was the extension of the
humanitarian rules from the Geneva Convention of 1864 to the victims of naval
conflicts. This adaptation is included at the origin of the present Second Geneva
Convention.
In 1906, the Convention of 1864 that protected the wounded and the sick of
armies in the field was revised. Although the revision expanded the convention
to 33 articles from the original 10 in the 1864 version, the fundamental
principles remained the same.
In 1907, a second Peace Conference was convened in The Hague. On this
occasion, the Conventions of 1899 were revised and some new rules were
introduced. Among the additions were a definition of combatants, rules on naval
warfare, rules on the rights and duties of neutral powers, rules on military
occupation, and rules regarding Prisoners of War (POW).
In 1925, as a direct result of the suffering endured during the First World War, a
Protocol prohibiting the use of gas was adopted. Although it was adopted in
Geneva, this Protocol clearly belongs, according to its content, to the legal
current of The Hague Law.
In 1929, a diplomatic Conference was convened in Geneva by the Swiss
Confederation. The main results of that Conference were:
The second revision (after 1906) of the 1864 Convention. This
Convention was again modified. Among the new provisions, mention
should be made of the first official recognition of the emblem of the Red
Crescent. Although that emblem had been used as early as 1876, it was
only in 1929 that it was authorized by law;
The other remarkable success of the 1929 Conference was the adoption of
the Convention relative to the treatment of Prisoners of War (also a
result of the First World War). Partially examined during the Peace
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Conference of 1899 and 1907, this important issue was not deeply studied
before 1929.
In 1949, just after the Second World War (note the parallel to World War I and
the Conference of 1929), the four current Geneva Conventions were adopted.
The First (protection of sick and wounded), Second (protection of shipwrecked),
and Third Conventions (prisoners of war), are mainly revised versions of former
Conventions. The Fourth Convention, establishing protection for the civilian
population, is an entirely new amendment and constitutes the greatest success of
the 1949 Conference. Another decisive improvement of the 1949 Diplomatic
conference was the adoption of Article 3 common to the four Conventions, the
first international provision applicable in situations of non-international armed
conflicts.
In 1977, after four sessions of Diplomatic Conferences, two additional Protocols
to the Geneva Conventions of 1949 were adopted. The First Protocol is related
to the protection of victims of international armed conflicts; the second to the
protection of victims of non-international armed conflicts. To some degree, this
Second Protocol can be regarded as an enlargement of Article 3 common to the
four Geneva Conventions.
In 1980, another important convention was adopted under the UN auspices, the
Convention on prohibition or restrictions on the use of conventional weapons
which may be deemed to be excessively injurious or to have indiscriminate
effects. This instrument limits or prohibits the use of mines, booby traps,
incendiary weapons, and non-detectable fragments.
In 1993, a comprehensive Convention prohibiting the development, production,
stockpiling, and use of chemical weapons was adopted. This treaty supplements
the basic prohibition contained in the 1925 Geneva Protocol.

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In 1995, a new Protocol, an appendage to the 1980 Convention, was adopted.

This new instrument prohibited the use of laser weapons designed to cause
permanent blindness.
In 1997, a Convention prohibiting the use, stockpiling, production, and transfer
of antipersonnel mines was signed in Ottawa.
In 1998, the Statute of the International Criminal Court (ICC) was adopted
in Rome. This accomplishment was the culmination of years of effort and
showed the resolve of the international community to ensure that those who
commit grave crimes do not go unpunished. The ICC has jurisdiction over
serious international crimes (Genocide, Crimes against Humanity, War crimes,
and Aggression) regardless of where they are committed.
In 1999, a new Protocol to the 1954 Convention on cultural property was
adopted. Protocol II enables the States party to that Convention to supplement
and reinforce the protection system established in 1954. It clarifies the concepts
of safeguarding and respect for cultural property; it lays down new precautions
in attacks and against the effects of attacks; and institutes a system of enhanced
protection for property of the greatest importance for humanity.
In 2000, an optional protocol to the 1989 Convention on the rights of the
child was adopted. This protocol raises the minimal age for compulsory
recruitment from 15 to 18 and calls on States to raise the minimum age for
voluntary recruitment above 15. It provides that armed groups should not use
children under 18 in any circumstances and calls on States to criminalize such
practices.
In 2003, the international community adopted a treaty to help reduce the human
suffering caused by explosive remnants of war and bring rapid assistance to
affected communities. Explosive remnants of war are unexploded weapons such
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as artillery shells, mortars, grenades, bombs, and rockets left behind after an
armed conflict.
In 2005, a diplomatic conference held in Geneva adopted a Third Additional
Protocol to the Geneva Conventions, creating an additional emblem alongside
the Red Cross and Red Crescent. The additional emblem, known as the red
crystal, should provide a comprehensive and lasting solution to the emblem
question. It will appear as a red frame in the shape of a square on a diagonal on
a white background, and is free from any religious, political, or other
connotation.
In 2008, governments negotiated and adopted the Convention on Cluster
Munitions. This important international humanitarian law treaty prohibits the
use, production, stockpiling, and transfer of cluster munitions, and requires
States to take specific action to ensure that these weapons claim no future
victims.

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It is worth noting the support lent by the international community to the Treaties
of IHL. Since 194 states are parties to these texts, the four Geneva Conventions
are now among the most universal instruments of international law.
Additionally, 172 States are parties to the First Protocol and 166 are parties to
the Second.

The Standing of IHL within Public

International Law
It should be emphasized that the rules and principles of IHL are actually legal
rules, not just moral or philosophical precepts or social custom. The corollary of
the legal/normative nature of these rules is, of course, the existence of a detailed
regime of rights and obligations imposed upon the different parties to an armed
conflict. For those states that have accepted them, the treaties of IHL are of a

habaab to make improvised explosive devices (IEDs), at a former steel factory in Mogadishu. AMISOM and Tra

Page | 23

binding character. This means, inter alia, that the most serious violations
thereof trigger individual criminal responsibility.
INTERNATIONAL HUMANITARIAN

International Humanitarian law must be understood and analysed as a distinct

part of a more comprehensive framework: the rules and principles regulating the
coordination and cooperation between the members of the international
community; i.e. Public International Law.
The following table illustrates this fact: IHL should thus be considered as an
integral (but distinct) part of Public International Law.

REFUGEE LAW

HUMAN RIGHTS LAW

LAWS GOVERNING DIPLOMATIC

LAWS GOVERNING ECONOMIC

RELATIONS

RELATIONS

LAWS GOVERNING THE PEACEFULE

LAWS GOVERNING

SETTLEMENT OF CONFLICT

INTERNATIONAL ORGANISATIONS

The next figure shows more precisely how IHL fits into the general framework
of Public International Law, and how it differs from another distinct part of this
whole, the principles of jus ad bellum.

JUS IN BELLO
HAGUE LAW

GENEVA LAW

JUS AD
BELLUM
LAW OF PEACE

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Relationship between Public International Law and International Humanitarian

The Distinction between Jus ad Bellum and Jus in Bello

Jus ad bellum (which regulates the resort to armed force) refers to the principle
of fighting a war based on precise causes, such as self-defence. On the other
hand, jus in bello (the rules applicable in armed conflicts a.k.a IHL) refers to the
principle of fighting a war justly, and encompasses standards of proportionality
and distinctions between civilians and combatants. International Humanitarian
Law (IHL) developed at a time when the use of force was a lawful form of
international relations, when states were not prohibited from waging war, when
they, in fact, had the right to make war (i.e. when they had the jus ad bellum).
Consequently, it was not a problem logically for international law to contain
certain rules of behaviour for states to observe in war (the jus in bello, or law
regulating the conduct of war), if they resorted to that means. Today, however,
the use of force between states is prohibited by a peremptory rule of
international law4 (the jus ad bellum has changed into a jus contra bellum).
Exceptions to this general prohibition are allowed in cases of individual and
collective self-defence,5 Security Council enforcement measures,6 and arguably
4 Expressed in Art. 2 (4) of the UN Charter: All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations

5 Recognized in Art. 51 of the UN Charter: Nothing in the present Charter shall

impair the inherent right of individual or collective self-defence if an armed
attack occurs against a Member of the United Nations, until the Security Council
has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to
take at any time such action as it deems necessary in order to maintain or
restore international peace and security
6 Established in Chapter VII of the UN Charter.
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to enforce peoples right to self-determination7

JUS AD BELLUM

(national liberation wars).

Logically, at least one side of a contemporary
international

armed

conflict

is

therefore

violating the rules of jus ad bellum, just by

using force, however respectful of IHL. All
municipal laws of the world equally prohibit
the use of force against (governmental) law
enforcement agencies.
Despite

the

prohibition

against

armed

conflicts, they continue to occur. Today states

RULES GOVERNING PARTIES WHO

RESORT TO ARMED FORCE
(PRACTICALLY DISAPPEARED)
NB:
3
POSSIBLE
CASES
IN
INTERNATIONAL LAW:

COLLECTIVE
SECURITY
OPERATIONS
WAR OF NATIONAL LIBERATION
LEGITIMATE DEFENCE
JUS IN BELLO
RULES
OF
INTERNATIONAL
LAW
APPLICABLE BETWEEN THE PARTIES
TO AN ARMED CONFLICT AND
RELATED TO ARMED CONFLICT (A.K.A.
IHL, FORMED BY 2 MAIN CURRENTS:
GENEVA LAW AND THE HAGUE LAW)

recognize that international law has to address this reality of international life,
not only by combating the phenomenon, but also by regulating it to ensure a
level of humanity in this fundamentally inhumane and illegal situation. For
practical, policy, and humanitarian reasons, IHL must apply impartially to both
belligerents; the one resorting lawfully to force and the one resorting unlawfully
to force. Otherwise it would be impossible to practically maintain respect for
IHL as, at least between the belligerents, it is always controversial which party
resorted to force in conformity with the jus ad bellum and which violates the jus
contra bellum. In addition, from a humanitarian standpoint, the victims on both
sides of the conflict need the same protection, and they are not necessarily
responsible for the violation of the jus ad bellum committed by their party.
Therefore, IHL must be honoured independently of any argument for jus ad
bellum and has to be completely distinguished from jus ad bellum. Any past,
7 The legitimacy of the use of force to enforce the right of peoples to selfdetermination (recognized in Art. 1 of both UN Human Rights Covenants) was
recognized for the first time in Resolution 2105 (XX) of the UN General Assembly
(20 December 1965).
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present, and future theory of just war only concerns jus ad bellum and cannot
justify (but is in fact frequently used to imply) that those fighting a just war
have more rights or less obligations under IHL than those fighting an unjust
war.
This complete separation between jus ad bellum and jus in bello has been
recognized in the preamble of Additional Protocol I of 1977 reading:
The High Contracting Parties,
Proclaiming their earnest wish to see peace prevail among peoples,
Recalling that every State has the duty, in conformity with the Charter of the
United Nations, to refrain in its international relations from the threat or use
of force against the sovereignty, territorial integrity or political independence
of any State, or in any other manner inconsistent with the purposes of the
United Nations,
Believing it necessary nevertheless to reaffirm and develop the provisions
protecting the victims of armed conflicts and to supplement measures
intended to reinforce their application,
Expressing their conviction that nothing in this Protocol or in the Geneva
Conventions of 12 August 1949 can be construed as legitimising or
authorizing any act of aggression or any other use of force inconsistent with
the Charter of the United Nations,
Reaffirming further that the provisions of the Geneva Conventions of 12
August 1949 and of this Protocol must be fully applied in all circumstances to
all persons who are protected by those instruments, without any adverse
distinction based on the nature or origin of the armed conflict or on the
causes espoused by or attributed to the Parties to the conflict.
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This complete separation between jus ad bellum and jus in bello implies that
IHL applies whenever there is de facto (in fact) an armed conflict, however that
conflict can be qualified under jus ad bellum, and that no jus ad bellum
arguments may be used in interpreting IHL. However, it also implies that the
rules of IHL may not render the jus ad bellum impossible to implement, e.g.,
render legitimate self-defence unlawful.

The Sources of International Humanitarian

Law
Since IHL is an integral part of Public International Law, its sources correspond,
logically enough, to those of the latter, as they are defined in Article 38 of the
Statute of the International Court of Justice.
According to Art 38 (1) of the Statute of the International Court of Justice,
which is regarded as an authoritative statement of the sources of international
law, the Court shall apply:
International conventions (please note convention is another word for
treaty);
International custom, as evidence of a general practice accepted as law;
The general principles of law recognised by civilised nations; and
Judicial decisions and the teachings of the most highly qualified
publicists, as subsidiary means for the determination of rules of law.
Treaties and custom are the main sources of international law. In respect to IHL,
the most important treaties are the Geneva Conventions of 1949, the Additional
Protocols of 1977, and the so-called Hague Conventions. While treaties are only
binding upon parties to a treaty, States can also be bound by rules of customary
international law. However, this requires that there is usage to be found in the
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practice of states and considered by those states as practice. There is wide

consensus among scholars that the rules contained in the four Geneva
Conventions of 1949 for the Protections of Victims of War and in The Hague
Convention (IV) of 1907 on the Laws of War on Land (with the exception of
administrative,

technical

and

logistical

regulations)

reflect

customary

international law. There is also agreement that many provisions of Additional

Protocol I and, to a lesser degree that the rules contained in Additional Protocol
reflect custom. When treaty rules are considered to reflect custom, they become
binding for all States
States are also bound by general principles of law. In regard of IHL one may
think of the fundamental principles of IHL such as the principle of distinction or
the principle of proportionality.

The Material Field of Application of IHL:

When Does IHL Apply?
International Humanitarian Law (IHL) applies in two very different types of
situations: international armed conflicts and non-international armed conflicts.
Before defining these two situations of application a few words should be said
about the notion of armed conflict, which has, from 1949 onwards, replaced
the traditional notion of war.
According to the Commentary to the First Geneva Conventions of 1949 8,The
substitution of this much more general expression (armed conflict) for the
word war was deliberate. One may argue almost endlessly about the legal
definition of war. A State can always pretend when it commits a hostile act
8 See Pictet, J.S., Commentary of the First Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, Geneva, International Committee of the Red Cross, 1952, p. 32.
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against another state, that it is not making war, but merely engaging in a police
action, or acting in legitimate self-defence. The expression armed conflict
makes such arguments less easy. Any difference arising between two States and
leading to the intervention of armed forces is an armed conflict ... even if one of
the Parties denies the existence of a state of war.
Although the treaties of IHL systematically refer to different types of armed
conflicts, they do not provide for a general definition of that concept. The first
comprehensive definition has been developed by the International Tribunal for
the former-Yugoslavia (ICTY). According to this definition () an armed
conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized
armed groups or between such groups within a State.9
This definition is now widely accepted and has since been used in a number of
military manuals and in numerous court cases (which demonstrate how judicial
decisions can become sources of IHL).
International armed conflict
IHL relating to international armed conflict applies to 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.10 The same set of provisions also applies to all cases of partial or total
occupation of the territory of a High Contracting Party, even if the said
occupation meets with no resistance.11

9 See ICTY, The Prosecutor v. Tadic, Jurisdiction.

10 Art. 2, common to the 1949 Geneva Conventions.
11 Ibid.
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According to traditional doctrine the notion of international armed conflict was

thus limited to armed contests between states. During the Diplomatic
Conference which led to the adoption of the two Additional Protocols of 1977,
this conception was challenged and it was finally recognized that wars of
national liberation12 should also be considered international armed conflicts.
Non-international armed conflict
Traditionally non-international armed conflicts (or, to use an outdated
terminology: civil wars) were considered purely internal matters for states, for
which no international law provisions applied. This view was radically modified
with the adoption of Article 3 common to the four Geneva Conventions of 1949.
For the first time, the community of States agreed on a set of minimal
guarantees to be respected during non-international armed conflicts. In spite of
its extreme importance, Article 3 does not offer a clear definition of the notion
of non-international armed conflict.13
During the Diplomatic Conference, the need for a comprehensive definition of
the notion of non-international armed conflict was reaffirmed and dealt with
accordingly in Article 2 of Additional Protocol II.
According to that provision, it was agreed that Protocol II Shall apply to all
armed conflicts not covered by Article 1 of Protocol I and which 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
12 Situations defined, in Article 1 (4) of Additional Protocol I, as armed conflicts
in which peoples are fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their right of self-determination.
13 Art. 3 merely states that it is applicable [I]n the case of armed conflict not of
an international character occurring on the territory of one of the High
Contracting Parties [...].
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carry out sustained and concerted military operations and to implement this
Protocol.
This fairly restrictive definition applies only to the situations covered by
Additional Protocol II. The definition does not apply to the situations covered
by Article 3 common to the four Geneva Conventions. 14 Practically, there are
thus situations of non-international armed conflicts in which only Article 3 will
apply, the level of organization of the dissident groups being insufficient for
Protocol II to apply. Conversely, common Art 3 will apply to all situations
covered by Additional Protocol II.
Other situations
IHL is not applicable in situations of internal violence and tensions. This point
has been clearly made in Article 1 (2) of Additional Protocol II, which states,
This Protocol shall not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and other acts of a similar
nature, as not being armed conflicts.15

The Basic Rules of IHL16

1) The parties to a conflict must at all times distinguish between the civilian
population and combatants in order to spare the civilian population and
14 Art. 1 of Additional Protocol II: This Protocol, which develops and
supplements Article 3 common to the Geneva Conventions [...] without modifying
its existing conditions of application [...].
15 The notion of internal disturbances and tensions have not made the object of
precise definitions during the 1974-1977 Diplomatic Conference.
16 These rules, drawn up by the ICRC, summarize the essence of international
humanitarian law. They do not have the authority of a legal instrument and in no way
seek to replace the treaties in force. They were drafted with a view to facilitating the
promotion of IHL.See: http://www. icrc.org/eng/assets/files/other/icrc_002_0703.pdf

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civilian property. Neither the civilian population as a whole, nor

individual civilians, may be attacked. Attacks may be made solely against
military objectives.
2) People who do not or can no longer take part in the hostilities are entitled
to respect for their lives and for their physical and mental integrity. Such
people must in all circumstances be protected and treated with humanity,
without any unfavourable distinction whatsoever.
3) It is forbidden to kill or wound an adversary who surrenders or who can
no longer take part in the fighting.
4) Neither the parties to the conflict nor members of their armed forces have
an unlimited right to choose methods and means of warfare. It is
forbidden to use weapons or methods of warfare that are likely to cause
unnecessary losses or excessive suffering.
5) The wounded and sick must be collected and cared for by the party to the
conflict which has them in its power. Medical personnel and medical
establishments, transports, and equipment must be spared. The Red Cross
or Red Crescent or red crystal on a white background is the distinctive
sign indicating that such persons and objects must be respected.
6) Captured combatants and civilians who find themselves under the
authority of the adverse party are entitled to respect for their lives, their
dignity, their personal rights, and their political, religious, and other
convictions. They must be protected against all acts of violence or
reprisal. They are entitled to exchange news with their families and
receive aid. They must enjoy basic judicial guarantees.

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oss assisted in removing bodies killed during the violence in Bunia, DRC, and the surrounding areas as the si

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