A.

Definition of IHL-

• Talks about the means and methods of conflict (governs how war must be conducted
• Aim of IHL is to limit the impact of war
• It applies to governments, civilians, and third parties/armed groups (state and non-
state actors)
• Balance between humanitarian aspects and military goals of a country
• Henri Dunant: Need for international community to limit impact of war
• Majorly governed by Geneva Conventions
• Jus ad Bellum: conditions under which States may resort to war or to the use of armed
force in general
• Jus in bello: regulates the conduct of parties engaged in an armed conflict
• IHL vs. PIL: PIL governs relations between countries and IHL comes into play only
when there is existence of violence
• IHL vs. IHRL: IHRL governs human rights in an ideal non-conflict scenario while
IHL is practical and is based on the rule of proportionality.
B. Jus ad Bellum and Jus ad Bello (https://www.icrc.org/en/document/what-are-jus-ad-bellum-
and-jus-bello-0)
C. Jus ad bellum refers to the conditions under which States may resort to war or to the use of
armed force in general. The prohibition against the use of force amongst States and the
exceptions to it (self-defense and UN authorization for the use of force), set out in the United
Nations Charter of 1945, are the core ingredients of jus ad bellum.
D. Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous
with juice in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and
assisting all victims of armed conflict to the greatest extent possible.

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.

- Part of International Law

 - International law is contained in agreements between States – treaties or conventions,in
customary rules, which consist of State practice considered by them as legally binding, and
in general principles.
- International humanitarian lawapplies to armed conflicts. It doesnot regulate whether a
State mayactually use force.

International Committee of Red Cross:

- Established by Henri Durant

- Ensures humanitarian protection and assistance of victims of armed conflicts and other
situations of violence
- The first Geneva Convention was initiated by what is now the ICRC
- Cannot be used as an agent of war

Martens Clause (KW Case/ICJ opinion on Nuclear Weapons)

Marten’s Clause:
• The 1899 Conference also adopted the Martens Clause, a clause adopted to resolve a stalemate
at the conference regarding the status of resistance fighters who take up arms against an
occupying authority.
• Named for its author, Russian delegate to the Hague Conference Fyodor von Martens, the
clause was a compromise position which decreed that, until a more complete set of laws of
armed conflict could be decided upon, the community of nations should not assume the law
was silent on matters that were not codified.
• States were to consider themselves bound by certain minimum fundamental standards of
behaviour, as understood by considerations of ‘humanity’ and ‘public conscience’.
• The Martens Clause was also included in the Preamble to the 1907 Hague Convention II.
• In the absence of cases not covered under IHL, combatants and civilians are not left
unprotected. The conduct of belligerence remains regulated by the following three principles:
o Law of Nations
o Laws of Humanity
o Dictates of public Conscience
• KW Case (1950): IHL was silent about how to treat enemies left behind in a country. A soldier
tortured an enemy left behind.
 • KW Case (judgement dated 8th Feb. 1950) - IHL was silent about enemy's soldiers post the
war…the case on the previous page. Observations -
• i. The clause has an interpretative value.
• ii. It points to specific and objective human rights like the UDHR
• iii. It lays down standards that may be used as guidelines for determining the proper
interpretation to be placed upon vague or insufficiently comprehensive international
humanitarian law principles.

Judgement: the clause has value. It points to specific comprehensive documents and like the
UDHR. It lays down standards that may be used as guidelines for determining the proper
interpretation to be placed upon vague or insufficiently comprehensive international
humanitarian law principles

• Legality of threat or use of nuclear weapons (ICJ Opinion, 1996):consider the general laws of armed
conflict before they could consider the specific laws relating to nuclear weapons. The ICJ did
not provide a clear understanding however regarding the Marten’s Clause It laid emphasis on
two cardinal principles:
a. the first being aimed at the distinction between combatants and non-combatants;
States must never make civilians the object of attack and must consequently never use weapons
that are incapable of distinguishing between civilian and military targets while
b. according to the second of those principles, unnecessary suffering should not be
caused to combatants.

By a letter dated 19 December 1994, filed in the Registry on 6 January 1995, the Secretary-General of
the United Nations officially communicated to the Registry a decision taken by the General Assembly,
by its resolution 49/75 K adopted on 15 December 1994, to submit to the Court, for advisory opinion,
the following question : “Is the threat or use of nuclear weapons in any circumstance permitted under
international law ?” The resolution asked the Court to render its advisory opinion “urgently”. Written
statements were filed by 28 States, and subsequently written observations on those statements were
presented by two States. In the course of the oral proceedings, which took place in October and
November 1995, 22 States presented oral statements.
On 8 July 1996, the Court rendered its Advisory Opinion. Having concluded that it had jurisdiction
to render an opinion on the question put to it and that there was no compelling reason to exercise its
discretion not to render an opinion, the Court found that the most directly relevant applicable law was
that relating to the use of force, as enshrined in the United Nations Charter, and the law applicable in
armed conflict, together with any specific treaties on nuclear weapons that the Court might find
relevant.

The Court then considered the question of the legality or illegality of the use of nuclear weapons in
the light of the provisions of the Charter relating to the threat or use of force. It observed, inter alia,
that those provisions applied to any use of force, regardless of the weapons employed. In addition it
stated that the principle of proportionality might not in itself exclude the use of nuclear weapons in
self-defence in all circumstances. However at the same time, a use of force that was proportionate
under the law of self-defence had, in order to be lawful, to meet the requirements of the law applicable
in armed conflict, including, in particular, the principles and rules of humanitarian law. It pointed out
that the notions of a “threat” and “use” of force within the meaning of Article 2, paragraph 4, of the
Charter stood together in the sense that if the use of force itself in a given case was illegal — for
whatever reason — the threat to use such force would likewise be illegal.

The Court then turned to the law applicable in situations of armed conflict. From a consideration of
customary and conventional law, it concluded that the use of nuclear weapons could not be seen as
specifically prohibited on the basis of that law, nor did it find any specific prohibition of the use of
nuclear weapons in the treaties that expressly prohibited the use of certain weapons of mass
destruction. The Court then turned to an examination of customary international law to determine
whether a prohibition of the threat or use of nuclear weapons as such flowed from that source of law.
Noting that the members of the international community were profoundly divided on the matter of
whether non-recourse to nuclear weapons over the past 50 years constituted the expression of an opinio
juris, it did not consider itself able to find that there was such an opinio juris. The emergence, as lex lata,
of a customary rule specifically prohibiting the use of nuclear weapons as such was hampered by the
continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence
to the doctrine of deterrence on the other. The Court then dealt with the question whether recourse
to nuclear weapons ought to be considered as illegal in the light of the principles and rules of
international humanitarian law applicable in armed conflict and of the law of neutrality. It laid
emphasis on two cardinal principles : (a) the first being aimed at the distinction between combatants
and non-combatants ; States must never make civilians the object of attack and must consequently
never use weapons that are incapable of distinguishing between civilian and military targets
while (b) according to the second of those principles, unnecessary suffering should not be caused to
combatants. It follows that States do not have unlimited freedom of choice in the weapons they use.
The Court also referred to the Martens Clause, according to which civilians and combatants remained
under the protection and authority of the principles of international law derived from established
custom, the principles of humanity and the dictates of public conscience.

The Court indicated that, although the applicability to nuclear weapons of the principles and rules of
humanitarian law and of the principle of neutrality was not disputed, the conclusions to be drawn
from it were, on the other hand, controversial. It pointed out that, in view of the unique characteristics
of nuclear weapons, the use of such weapons seemed scarcely reconcilable with respect for the
requirements of the law applicable in armed conflict. The Court was led to observe that “in view of
the current state of international law and of the elements of fact at its disposal, [it] cannot conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very survival of a State would be at stake”. The Court
added, lastly, that there was an obligation to pursue in good faith and to conclude negotiations leading
to nuclear disarmament in all its aspects under strict and effective international control.

Lieber Code and Sherman Tactics

Lieber Code (1863):

• This is the first code that codified code of conduct for internal armed conflict.
• In 1863, the Civil War was going on in America. Abraham Lincoln requested Frances Lieber
to draft a code of conduct for the soldiers. He set out certain codes, and the US President
signed upon the General Order 100, also called the Lieber Code.
• The Code has 157 provisions and it deals with wide variety of issues like difference between
combatants and civilians, military necessity and humane treatment.
 • After the Lieber code got implemented, one area was left to be captured. Sherman tactics were
implemented, which evolved from the Lieber Code, adopted by Sherman to win the area of
Atlanta.

Military Necessity Combatant/Civilian Humane Treatment

Distinction

Which Articles Article 5 (maybe), 14, Article 19,22,23 Article 56,57,68,

of the Lieber 15, 16 79,80 and 82.
Code deal with
this principle?

What is the Necessary state action The idea of making a The basic standard
principle? of force for fighting distinction between a hostile for treating prisoners
and winning a war. nation / individuals acting in of war, and not
furtherance of its objectives subjecting them to
and a private individual inhuman treatment
belonging to a hostile nation. such as torture as an
Both cannot be treated on par. act of revenge or any
other like acts.

Why is it Recognizes that there Reducing the suffering and Recognizes military
important? are limitations on causality of civilians (unarmed) objectives and the
state action when individuals in situations of war. fact that mere taking
engaged in an act of of life cannot be the
war object of war.
 What are some It states that all It requires armed combatants Establishes an unduly
tensions within destruction of life and to give a prior notice before high standard for
the principle? property is allowed undertaking any major assault treatment of enemy
but the intention against the enemy which is combatants.
cannot be cruelty or unrealistic is most
revenge. Not for circumstances.
torture or extracting
confessions.

When Lincoln signed the code, war was still going on. There was a region which was un-conquerable,
T.Sherman was asked to march that way and Practical application of code came into picture:

- T.Sherman managed to capture the area and win the war while by following his rules and
tactics (modernly known as 'Sherman Tactics').

- Sherman tactics are roughly based on the Lieber code.

- The language of any guidelines (read Lieber code) can be misused. Lieber toh even had
starvation and stuff as it contents.

- Suppose certain measures can allow the war to end quickly but tactics are harsh (such as
sherman tactics), by IHL perspective, it is impermissible but by other law of nations or even common
sense, it may be done. (Thrasymachus was right lmao)

Problems with Liber Code:

Vague and ambiguous drafting, excessively enforce military necessity, poor recognition of principle of
distinction.

- When we talk of IHL, we also should talk of breach of IHL.

 - Accountability is a v big problem now and was am even bigger one during lieber code times.

Sherman tactics – he was sent to capture territory which no one else could. These are basically
directions given by the commanding officer to his soldiers

Hague Regulations being a customary form of IHL

Second Hague Peace Conference

• The Conventions and Declarations were revisited at the second Peace Conference at The
Hague in 1907, where ten conventions were adopted covering the settlement of international
disputes, the laws and customs of war on land, and rules regarding naval warfare – these are
known as the Hague Regulations of 1907.

• Customary international law is made up of rules that are considered “general practice accepted
as law” and that exist independently of treaty law. Customary IHL is of crucial importance in
today’s armed conflicts because it fills gaps left by treaty law applicable to both international
and non-international conflicts and so strengthens the protection afforded to victims.

• International law is made up of both treaty law and the rules of what is known as customary
international law. Treaties are written conventions in which States formally establish certain
rules. Customary international law, on the other hand, is not written but derives from “a
general practice accepted as law”. A customary rule reflects the practice of states; furthermore,
the international community must consider that there is a legal obligation to engage in a
practice.

• Customary IHL continues to be relevant in today’s armed conflicts for two main reasons. The
first is that, while some States have not ratified important treaty law, they remain nonetheless
bound by rules of customary law.

• The second reason is the relative weakness of treaty law governing non-international armed
conflicts – those that involve armed groups and usually take place within the boundaries of
one country. A study published by the ICRC in 2005 showed that the legal framework
governing internal armed conflicts is more detailed un-der customary international law than
 under treaty law. Since most armed conflicts today are non-international this is of particular
importance.

• Custom need not always pre-date a treaty. With time a treaty can take universal characteristic
and become a part customary international law.

ICRC Case Study: The application of Human Rights where the Geneva Convention is not applied or
accepted.

1. THE PRINCIPLE OF HUMANITY The situation: In a country where violent clashes are
taking place between armed groups, a local group leader suddenly comes face to face with a
member of the opposing group. Both are wounded in the ensuing hand-to-hand encounter.
The group leader manages to bind up his own wounds. He then gives rudimentary first aid to
his adversary, who is hors de combat, and drags him into his house. There his comrades in
arms oppose his decision, saying that as he did not leave his enemy to die, that enemy should
now be executed, especially as this is the practice of the other side. If his life is spared he
should at least be forced to remove the mines laid by the people on his side. Question: The
leader knows that the command under which he serves has publicly stated that it intends to
respect the basic provisions of the Geneva Conventions. What must he do?
Among the 450 articles of the Geneva Conventions, only Article 3 common to the four
Conventions applies as a matter of principle to civil wars or non-international armed conflict,
but it is developed and supplemented by the 28 articles of P II of 1977. The conditions for
the application of P II are that there must be ‘‘organized armed groups’’ under ‘‘responsible
command’’, which control a part of the territory and carry out sustained and concerted military
operations. In the situation described these conditions appear to be present. The ‘‘dissidents’’
are in any event bound by C IV, Art. 3, paragraph (2), which clearly states that the wounded
and sick shall be collected and cared for, and by Art. 3, paragraph (1), common to all four
Conventions, which states that adversaries who are hors de combat shall not be killed. The
declaration by the authorities commanding the group that they will respect the basic provisions
of the Geneva Conventions answers the explicit invitation to do so contained in Art. 3 (2),
subpara. 3, common to all four Conventions. The following principles belong to the basic
provisions of the Conventions: & the principle of humanity must be respected in all
circumstances, even if the enemy infringes it (C I-IV, Art. 1); & reprisals against protected
 persons (C I, Art. 46; C II, Art. 16;C III, Art. 13, para. 3; C IV, Art. 33, para. 3) are illegal; &
prisoners of war are in the hands of the enemy Power, but not of individuals or military units
who have captured them (C III,Art. 12, para. 1); & unless he is a volunteer, no prisoner of war
may be employed to remove mines or similar devices (C III, Art. 52, paras. 1 and 3)
The commander must spare his prisoner’s life and care for him as best as he can, protect him
from ill-treatment by his comrades in arms, not use him to carry out dangerous or humiliating
work and evacuate him as soon as possible to a place of safety and hand him over to his
superiors. If he cannot fulfil these obligations he must set him free on the spot, provided this
does not endanger the prisoner’s life.
2. ‘‘ARMED PROTECTION’’/THE PRINCIPLE OF NEUTRALITY The situation: In the
course of an operation taking place in an non-international armed conflict the ICRC may at
any time be confronted with government troops or ‘‘armed dissidents’’. Government forces
frequently offer to protect the ICRC during its relief distributions.
Questions: 1. How should the ICRC react after carefully examining the dangers of the
situation? 2. Can it accept protection by soldiers? 3. What reasons could it give for its decision?
4. Which fundamental principles have to be considered?
The provisions relating to non-international armed conflict in the Conventions of 1949 are
insufficient (Art. 3 common to C I-IV). Only one paragraph in the 28 articles of Protocol II
of 1977 deals with relief actions for the civilian population (P II, Art. 18, para. 2). Relief actions
must be ‘‘exclusively humanitarian’’ and ‘‘impartial’’, conducted without any adverse
distinction and undertaken subject to the consent of the Contracting Party ‘‘concerned’’. All
that is required is the consent of the Contracting Party. There is no mention of that of the
dissident armed forces. However, it is unimaginable that anything should be attempted without
the consent of the dissident forces in the areas they control, or in the ‘‘contact zones’’ as in
the present case (P II, Art. 1, para. 1). Art. 3, para. 3, of C I-IV, which states that special
agreements are necessary, therefore still applies. The ICRC cannot impose its relief actions on
the parties involved. In 1977 respect for the emblem in non-international armed conflicts and
prohibition of its improper use became principles of written law (P II, Art. 12). The trust of
all parties concerned is indispensable for the ICRC. That trust is based on respect for the
protective emblem, ICRC readiness to engage in dialogue, and the search for common ground
for agreement. This is binding on all parties, independently of each other. This does not,
however, remove danger from relief actions; there is no such thing as absolute protection in
 armed conflicts; international humanitarian law is not a life insurance policy! In practice the
danger is increased by nearby fighting and military objectives.
Answers: 1. After realistic assessment of the situation the ICRC should make sure that the
above-mentioned conditions are being respected and thereafter rely on the rules of
humanitarian law. 2. No, the offer to provide an armed escort must be politely but firmly
refused. 3. The refusal must be explained by saying that the Red Cross does its work without
weapons, that one of its fundamental principles is its neutrality, that it cannot place itself under
the protection of one of the parties to a conflict, and that the only effect of an armed escort
would be to provoke a violent reaction by the other party; and that misunderstandings could
aggravate distrust and danger. 4. This whole approach is based on the principles of neutrality
and independence.

3. INTERNATIONAL ARMED CONFLICT/MURDER OF PRISONERS/REPRISALS

The situation: During an armed conflict between States party to the Geneva Conventions a
military aircraft makes a forced landing on enemy territory. Before the armed forces can
capture the pilot he is lynched by local inhabitants. Shortly afterwards, planes from the
murdered pilot’s country of origin drop pamphlets on a field hospital in the area where the
murder occurred, stating: ‘‘You have violated international law. You beheaded one of our
pilots after taking him prisoner. International law requires prisoners to be humanely treated.
You will be punished for what you did’’.
Questions: 1. Was the civilian population entitled to kill the enemy pilot if he would not
surrender? 2. What do you think of the pamphlet? 3. Does the hospital need to fear attack if
it bears the protective emblem? 4. In view of the threat, what can be done to avoid the death
of patients and staff looking after them? 5. What does Additional Protocol I say on the subject?
1.The civilian population was not entitled to kill the pilot even if he would not lay down his
arms. Art. 4 A (6) of C III is not relevant to this case. 2. The reprisals with which the pamphlet
threatens the civilian population and civilian property are prohibited (C IV, Art. 33; P I, Art.
51, para. 6, and Art. 52, para. 1). 3. Yes, because any threat, even if illegal and unjustified, has
to be taken seriously. This applies to hospitals, whether or not they bear the protective emblem
(C IV, Art. 18, para. 1 (for field hospitals), and C I, Art. 19). 4. The following measures may
 be taken to avoid the threatened escalation of violence: Under C IV, Art. 146, para. 2, the State
concerned will undertake to search for the persons responsible for murdering the pilot, punish
them severely and take steps to prevent any repetition of such occurrences (C IV, Art. 146,
para. 3). An enquiry into a violation of international law must be instituted in a manner to be
decided between the interested parties (C IV, Art. 149), through the intermediary of the
Protecting Power, if any (C IV, Art. 9, para. 1). The ICRC remains entitled to carry out
humanitarian activities even where there are Protecting Powers and in addition to their
activities (C IV, Arts. 10, 30, and 143, para. 5). Representations must be made at diplomatic
level. As a result of these threats consideration should be given to evacuating the field hospital
in good time, even though the conditions mentioned in C IV, Art. 19, para. 1, are not present.
It would probably be unwise to make use of the mass media to draw attention to the situation,
as this could easily cause both sides to harden their attitudes. 5. The action intended by the
enemy air force is a war crime(P I, Art. 85). The best thing to do would be to inform the
International Fact-Finding Commission (P I, Art. 90), which would carry out an enquiry on
the spot and make recommendations. Unfortunately, only the Powers that expressly recognize
this Commission as competent are bound to accept its findings, and there have been few
declarations of recognition so far (see P I, Art. 90, and Commentaries on the Protocols).

7. EQUAL TREATMENT OF THE SICK The situation: During the reconquest of an enemy-
occupied territory, the commander of a military unit asks the chief physician of the hospital in a small
town to take in wounded from his unit who cannot be moved. The chief physician replies that his
hospital is already completely full of enemy soldiers and that they too are not in a condition to be
moved. The commander replies: ‘‘Your enemy wounded are now my prisoners of war. I therefore
order you to evacuate them and make room of our own soldiers.’’ The chief physician refuses to
evacuate seriously wounded persons even if they are enemy soldiers. The soldiers accompanying the
officer resent this answer and draw their weapons. The chief physician thereupon makes his answer
all the plainer by standing in the doorway of the hospital to bar entry to it. You are the legal adviser
to the unit commander. Question: Are you going to agree to the use of force?
The unit commander’s order to evacuate the wounded is illegal, whether the conflict is international
or non-international.
Under C I, Art. 12, para. 2, the wounded or sick, whether friends or enemies, must be cared for without
distinction; only urgent medical reasons will authorize any distinction in or priority of treatment (C I,
Art. 12, para 3, the principle of which was reaffirmed in 1977 by P I, Art. 15, para. 3); it is also
prohibited to deprive them wilfully of care and medical assistance. These provisions are binding on
both the chief physician and the unit commander. C III, Art. 30, para. 2, allows prisoners of war to be
admitted to either military or civilian medical units. 81 In the present case there are two categories of
wounded: those who can be moved and those who cannot be moved; humanity and the
abovementioned provisions require the latter category to be given priority. The order to evacuate all
enemy wounded is therefore illegal, and this is what has to be explained to the commander (see 1977
P I, Art. 82, and Art. 16, para. 1). The latter two possibilities also require a single answer. As a general
rule a Convention does not create any rights or obligations until ratification of or accession to it (Art.
34 of the 1969 Vienna Convention on the Law of Treaties). However, the provisions of a Convention
are sometimes recognized as ‘‘customary rules of international law’’, in which case nothing precludes
them from becoming binding even on non-signatories (see Art. 38 of the Vienna Convention). The
principles of the Geneva Conventions belong to international customary law, which may be said to be
derived from established custom, the principles of humanity and the dictates of public conscience (see
the Martens clause of 1907, reaffirmed in 1977 by P I, Art. 1, para. 2, and P II, Preamble consideration
4).

15. INTERNATIONAL LAW/NATIONAL LAW The situation: Under the Geneva Conventions
unauthorized use of the protective emblem (red cross or red crescent) by individuals or corporate
bodies is prohibited. Violations of this rule must be dealt with in accordance with international law.
Questions: 1. Is there any difference between a violation in a country that applies the Geneva
Conventions as having the effect of national law and a violation in a country that does so via
implementory legislation? 2. Who must take measures, and what measures, to ensure the protection
of the emblem in accordance with the Conventions? 3. What is the situation regarding similar emblems
used prior to 1906 and 1949?
The provisions relating to the protective emblem are contained in C I, Art. 38. As civilian and military
medical units are placed on the same footing, reference must be made to P I, Art. 18. The use of the
red cross sign by any unauthorized person is expressly prohibited (C I, Art. 44). The prohibition also
applies to imitations. Answers: 1. No, under C I, Arts. 53 and 54, the Contracting Parties are under
the obligation of ordering protective measures. The purpose of C I, Art. 53, is not to introduce a direct
national law, for Art. 54 expressly envisages implementory legislation. This also applies to States that
directly apply public international law in their internal law. 2. States are required to implement the
legislative or regulatory measures necessary to give effect to the provisions of the Conventions
protecting the emblem against abuse. 3. In terms of protection against misuse, signs and designations
constituting imitations must be treated in the same way. This applies equally for the red cross and the
red crescent. Protection against misuse of the protective emblem dates back to 1906 and protection
against imitations to 1929. Red crosses are still permissible in coats of arms of municipalities, and in
an ecclesiastical context. In 1949, the red shield of David (the medical service emblem in Isræl) was
not accepted. In August 1980, Iran dropped the emblem of the red lion and sun and adopted the red
crescent emblem. By October 1987, 120 of the 145 National Societies recognized by the ICRC and
members of the League had adopted the red cross, and 24 the red crescent. One (USSR) had adopted
both emblems.

17. RUSES OF WAR/ACTS OF PERFIDY The situation: The commander of the occupation forces
authorizes a unit of Red Cross auxiliaries to collect and care for the wounded in occupied territory
and on this occasion to display the Red Cross flag. In the course of their activities the auxiliaries
discover among the wounded a member of their own armed forces who is only slightly injured. He
tells them that he is pretending to be wounded so that he can carry on the fight in the rear of the
enemy. He asks the auxiliaries to bandage him heavily so as to disguise his true condition, to carry him
to safety on a stretcher, and to help him to recover his weapon. Questions: 1. What do you think of
these requests? 2. What regulations must the auxiliaries observe when deciding what to do? 3. Should
they comply with the soldier’s request? 4. What must they do?
The wounded man’s requests are unacceptable. To comply with them would be to destroy the trust
that is essential to Red Cross work. 2. In doing its work the Red Cross observes the principles of
1965* (in this case impartiality and neutrality). 3. The request must be firmly refused. In accordance
with the principles of independence and neutrality, the Red Cross may not take port in the fighting in
any way, even indirectly. 4. The unit of Red Cross auxiliaries must continue to come to the aid of
genuine victims, giving priority to the most urgent cases of distress (as required by the principles of
humanity and impartiality).
This is an international armed conflict, for only in a conflict of this kind can there be occupied zones.
An internal armed conflict takes place only within the borders of a State (cf. C I-IV, Art. 2). All four
Conventions, and Additional Protocol I, are therefore applicable. The 1949 Conventions place Red
Cross auxiliary units on the same footing as military medical personnel (C I, Art. 26), provided those
units are subject to military laws and regulations. This is not the case here; consequently the auxiliaries
benefit by the protection granted to civilian persons. Only since 1977 (P I, Art. 8(c) (ii)), have civilian
medical personnel been protected equally with military medical personnel. The Additional Protocols
of 1977 develop the 1949 law in so far as aid societies are unconditionally permitted, even on their
own initiative, to collect and care for the wounded (P I, Art. 17, para. 1). The special permission
formerly required (under C I, Art. 18, para. 2) to do this is no longer necessary. A great measure of
trust is therefore placed in national aid societies. But the white flag — if possible of large size —
bearing the emblem of the red cross or red crescent may not be displayed except with the agreement
of the competent authorities. This rule was not modified in 1977 (C I, Art. 39, P I, Art. 18, para. 4).

18. SUSPENSION OF HOSTILITIES (TRUCE) AND PERFIDY The situation: One of the Parties
to the Geneva Conventions has not recognized the existence of a state of war between itself and
another State against which it claims be simply conducting police operations. After fierce fighting,
sector commanders agree on a truce to care for the wounded. A Red Cross unit goes to the scene and
an armed soldier is ordered to protect it. The Red Cross auxiliaries first care for a wounded enemy
soldier who later, as they are looking after other wounded, fires behind their backs on the soldier
escorting them, but misses him. The soldier prepares to fire back at the ‘‘sniper’’, who puts up his
hands in token of surrender. Questions: 1. What is the significance of non-recognition of a state of
war? 2. Where can the legal provisions for such a truce be found? 3. Is the Red Cross unit an integral
part of the military medical service? 4. What do you think of the wounded man’s conduct and the
soldier’s reaction? 5. Does Protocol I contain anything (whether old or new) in this connection?
1. It does not matter that the state of war has not been recognized. Provided that hostilities exist, the
Conventions are applicable. 2. A truce is an agreement for the suspension of hostilities for a specified
time and at a specified place. It is generally used to evacuate the wounded C I, Art. 15, para. 2). It
should not be confused with an armistice, which is wider in scope and is often a preliminary to the
end of hostilities (H.IV.R, Arts. 3641). 3. The members of the Red Cross unit have civilian status.
Even under C I, Art. 26, the unit would not become part of the military medical services, but only be
placed on the same footing. Article 8(c) of P I does the same for civil defence organizations (but the
term used is assignments). 4. The enemy soldier has violated the truce and has ceased to behave like a
person hors de combat. Military action may be taken against him (H.IV.R, Art. 40 in this sense and P
I, Art. 41, para. 2). He has infringed the prohibition of resort to perfidy (H.IV.R Art. 23, para. 1b).
Under the pretext of being slightly wounded he has pretended to be hors de combat (here P I, Art.
37, para. 1b applies). He is punishable for this breach of the law. 5. Articles 35 ff. of P I take up and
develop the provisions of H.IV.R Arts. 22 ff. P I, Art. 37, defines perfidy and gives examples of it;
also by means of examples it differentiates it from ruses of war. Acts of hostility and attempted escape,
for example, suspend the protection to which a wounded person is entitled.

21.ESPIONAGE The situation: After the outbreak of hostilities between two countries, an officer
enters the enemy country and sets up an espionage network in which he takes part as a spy. He then
returns to his own country and rejoins its armed forces. Later on he is taken prisoner and accused of
having directed espionage activities. Both States have ratified the Geneva Conventions; H.IV.R is
accepted as customary law. You are to defend the accused officer. Questions: 1. On what are you
going to base your defence of your client? 2. Can the prosecuting counsel wittingly maintain that your
client is not entitled to the protection of the Conventions because they have been repeatedly violated
by his country? 3. Can the court apply the clausula rebus sic stantibus? That is, can it decide the
Convention is not applicable unless circumstances remain in the state in which they were envisaged
when the treaty was concluded?
Spies caught in the act may not be punished without previous trial (H.IV.R, Art. 30). If they are not
caught in the act but are made prisoners later, they acquire the status of protected persons (H.IV.R,
Art. 31, C III, Art. 13). The Third Convention makes no mention of spies. Relations between C III
and H.IV.R of 1907 are based on Art. 135 of C III, which is complementary to H.IV.R. Article 31,
H.IV.R, indicates that the fact of being captured in the act is decisive. The provisions of P I, Art. 46,
para. 4 are to the same effect. Answers: 1. You are going to base your defence on the above provisions.
Your client must be acquitted! (See also C III, Art. 91, para. 2)). 2. The argument put forward by the
counsel for the prosecution is not determinative. Substantial breaches of a treaty generally entitle the
other party to withdraw from it, but no such right exists here since the Conventions are humanitarian
ones. In any event, their denunciation requires a political decision by the government, and has no
effect during the conflict (C III, Art. 142). 3. In this context it would be a reprisal to apply the rebus
sic stantibus clause, and reprisals against prisoners of war are forbidden (C III, Art. 13).

22. UNITED NATIONS CONTINGENT AND THE LAW OF GENEVA The situation: United
Nations troops are sent to the scene of an armed conflict which one of the Parties declares to be an
international conflict, whereas the other denies it that status. Soldiers of the United Nations armed
forces are taken prisoner and illtreated during interrogation. They are forced to make a confession
stating that they were ordered to fly over enemy territory to spread bacteria over it. In reply to criticism
in the world press the Detaining Power argues that: & neither Party to the conflict is party to the Third
Geneva Convention relative to prisoners of war. Nor is the UN. The Parties to the conflict have, on
the other hand, declared that they will apply the Third Geneva Convention. The UN has not made
any such declaration. Consequently the Detaining Power considers itself bound towards the enemy
State but not towards the UN; & the methods of interrogation used are therefore not a breach of
humanitarian law, and have moreover saved lives by putting an end to such flights over its territory
and the use of bacteriological weapons. Question: Is this analysis of the situation correct? Give reasons
why/why not.
Art. 2, paragraph 7, of the Charter of the UN forbids the UN to interfere in a country’s internal affairs.
In UN practice this prohibition also generally applies to non-international armed conflicts. The armed
conflict in question must therefore be between two States (N.B. It can also be between two parts of a
divided State, one of whose parts attacks the other so as to restore national unity, as happened in
Korea). The UN has no armed forces of its own. Member States place armed national contingents at
its disposal (as in Korea, Lebanon, Sinai, the Golan heights, Congo, etc.), sometimes at the request of
a State that feels that it is threatened by another Power and has insufficient means of defence. The
Security Council authorizes the use of the UN flag together with that of the State supplying a
contingent (see P I, Art. 38, para. 2, and Art. 39, para. 2). Although a judgment rendered by the
International Court of Justice in The Hague in 1949 declared that the UN had a legal personatity under
international law — and was therefore able to conclude agreements with States — it has not so far
adhered to Geneva Conventions. The member States retain their juridical capacity, and the contingents
that they supply remain under their responsibility. This also applies to the declaration of acceptance
in accordance with C I-IV, Art. 2, para. 3. Answer: The Geneva Conventions must be respected in all
circumstances by all the contingents and by their adversaries (C I-IV, Art. 1). The States that supply
the contingents and are party to the Conventions are no less responsible than individuals for applying
the Conventions (C III, Art. 12, para. 1). Ill-treatment and coercion are inhumane acts violating C III,
Arts. 13 and 17, para. 4, and are grave breaches as defined by C III, Arts. 129 and 130. No argument
can possibly justify the methods of interrogation used. They are absolutely contrary to any
humanitarian regulation in any circumstances whatsoever, whether in peace or war and whatever the
place or victim.
Who is a POW?
Prisoner of War Status-
- The main treaty governing the treatment of prisoners of war is Geneva Convention III.
- Prisoners of war received rudimentary protection under the 1864 Geneva Convention for
the Amelioration of the Condition of the Wounded in Armies in the Field. Hague
Regulations also protect PoW.
- 1929 Geneva Convention Relative to the Treatment of Prisoners of War,
- The 1929 Convention was superseded in 1949 by Geneva Convention III, Aditional
protocol I.
- Geneva Convention III and Additional Protocol I only operate in international armed
conflict.
- Certain protection is granted in case of NIAC.

Who is entitled and not entitled to the status of POW?

Who is a PoW?
- Article 4 of Geneva Convention III provides an extensive definition of prisoner of war
status. A prisoner of war is defined as a person belonging to any of a number of
enumerated categories, who has ‘fallen into the power of the enemy’.
- The first category listed in the provision covers members of the regular armed forces of a
party to the conflict.
- The second category includes members of other armed groups who:
o are under responsible command;
o bear a fixed, distinctive sign recognisable at a distance;
o carry arms openly; and
o respect the requirements of international humanitarian law.
- Anyone who is recognised under Geneva Convention III as a combatant is therefore
entitled to prisoner of war status if captured by the enemy. Article 4 then goes on to list
several additional categories of prisoners of war who may not be covered by the definition
of a combatant.
 o Persons whoa accompany armed forces but are not members of it. Ex., War
correspondents, Contractors etc.
o members of crews of merchant marine and civil aircraft of a party to the conflict.
o inhabitants of a particular region who spontaneously take up arms.
o former members of armed forces who are caught in an attempt to rejoin the forces
of which they used to be members.
- Article 5 of GC III governs the duration of prisoner of war status.
- From time of capture to final release.

If doubt to the status of PoW, he should be accorded the status.

Conflict between AP I and GC III

- According to Article 44 of Additional Protocol I, ‘[a]ny combatant, as defined in Article
43, who falls into the power of an adverse Party shall be a prisoner of war’.
- The definition covers all armed forces or groups under the command of a party to the
conflict who are subject to an internal disciplinary system and distinguish themselves from
the civilian population or, in situations where this is not possible, carry arms openly
whenever engaging in or preparing to engage in an attack.
- The effect of Additional Protocol I is to slightly widen the definition of prisoner of war
status set out in Geneva Convention III.
- The main difference between the regimes is that whereas Geneva Convention III
requires combatants to distinguish themselves from civilians through a uniform or
other distinctive sign, Additional Protocol I recognises that this is sometimes too
demanding.
- Members of resistance groups and volunteer militia should be recognised as combatants
and afforded prisoner of war protections even if they do not wear uniforms, provided that
they carry arms openly during attacks.

Who is not entitled to prisoner of war status?

- Detained civilians are not prisoners of war(Protected persons under GC IV).
- There are also some detainees who will not qualify as prisoners of war despite playing an
active role in the armed conflict. The three main categories are
Spies
- Spies and mercenaries have traditionally been excluded from prisoner of war status under
the law of armed conflict.
- Parties may grant members of these classes prisoner of war status if they wish, but they
are not obliged to do so.
- Article 46 of AP I covers spies and mercenaries. Spies are defined in that provision as
military personnel engaged in espionage (information gathering, sabotage and the like)
who are acting clandestinely and are not in uniform.
- Covert nature is must, any member of the armed forces who gathers information in
uniform or who does so without deception or false pretences will not be considered a spy.
- Traditionally, spies have risked summary execution, but this is now clearly prohibited.
- Spiesare not immune from punishment for their hostile acts under the laws of the
detaining power.
- Article 5 of GC IV- Treated humanely, Fair trial. Should be treated as protected persons.
- they are regarded as having forfeited their rights of communication.

Mercenaries
- Article 47 of AP1- persons who are not nationals of a party to the conflict or members of
the regular armed forces of a state and are specifically recruited to fight in the conflict for
a substantial material reward.
- ‘shall not have the right to be a combatant or a prisoner of war’
- liable to punishment in accordance with the laws of the detaining power.
- To be treated humanely and fair trial.
- Article 75 of Additional Protocol I- Protected under. (Both spies and mercenaries)

Unprivileged Belligerents.
- These are persons who are actively engaged in fighting, but for one reason or another do
not satisfy the definition of a combatant under Geneva Convention III or Additional
Protocol I
- The guarantees available to them are similar to those enjoyed by spies and mercenaries.
- They will typically be entitled to the protections of Geneva Convention IV, unless this is
inconsistent with the security of the detaining power.
 - They are further protected by the fundamental guarantees in Article 75 of Additional
Protocol I.

Medical and Religious Personnel

- Article 33 of GC III.
- Persons falling within these categories are not considered prisoners of war, since they are
not combatants.
- they may nonetheless be detained to provide assistance to prisoners of war during their
captivity.
- Medical personnel and chaplains detained under this provision are then entitled to
protections equivalent in all respects to those given to prisoners of war.
- They are also entitled to be provided with the necessary facilities for fulfilling their medical
and spiritual duties.
- Chaplains who are detained to minister to detainees should be allowed to follow their
religious conscience and maintain contact with ecclesiastical authorities.
- Detainees who have medical qualifications may be required to tend to other prisoners, but
shall likewise be exempted from other employment.

Prisoners of War in Non-International Conflicts (Niacs)

- Geneva Convention III, like the other Geneva Conventions of 1949, only applies in
international armed conflicts.
- prisoner of war status does not exist in non-international conflicts.
- Prisoners of war are belligerents placed hors de combat by reason of capture.
- These persons enjoy special protections in armed conflicts of all kinds
- protected under Common Article 3 of the Geneva Conventions.
- It guarantees such persons humane treatment and freedom from violence, outrages against
personal dignity and punishment without due process.
- Captured fighters in non-international conflicts are also protected by the fundamental
guarantees in Articles 4 and 5 of Additional Protocol II.
- According to Article 5, persons detained in non-international armed conflicts are entitled
to food and drinking water, healthy conditions and protection from the elements.
 - They are entitled to religious freedom and assistance from chaplains.
- If made to work, their working conditions should be comparable to the local population.
- Detainees in non-international conflicts are further protected by the guarantees of due
process set out in Article 6 of Additional Protocol II.
- Many of the provisions of Articles 5 and 6 reproduce guarantees afforded to prisoners of
war under Geneva Convention III.
- Captured fighters are protected in conflicts of both kinds.
- One important difference between PoW status under Geneva Convention III and the
position of captured fighters under Common Article 3 and Additional Protocol II.

Combatants in international armed conflicts have the right to take part in warfare andmay not be
punished for doing so. Belligerents in non-international conflicts, on the other hand, are liable to
prosecution under domestic law for their hostile actions.

What are the rights available to POW?

Communication right of PoW
- Prisoners of war enjoy robust communication rights under Geneva Convention III.
- Combatants are entitled to write to their families upon capture to provide details of their
address and state of health.
- Article 71, prisoners of war must be allowed to send and receive letters and cards, which
should be conveyed without delay.
- Article 72 extends this protection to cover parcels containing food, clothing, medical
supplies, and recreational, educational and religious items.

may be censored by the authorities.

Prohibited Attacks (Prosecutor v. Rajic)

Ivica Rajić, a commander of the HVO based in Kiseljak, stood trial for allegedly having planned,
instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and
execution of crimes in Vareš municipality against Muslim residents in the area, including the detention
of Muslim civilians, the plunder of Muslim homes by forces under Ivica Rajić’s command, and the
sexual assault of Muslim women. The prosecution accused him, under theories of individual and
superior criminal responsibility, of grave breaches of the Geneva Conventions for willful killing,
inhuman treatment, unlawful confinement of a civilian, appropriation of property, and extensive
destruction not justified by military necessity; and violation of the laws or customs of war for murder,
outrages upon personal dignity, cruel treatment, plunder of public or private property, and wanton
destruction of a city or devastation not justified by military necessity.

In 2006, the Trial Chamber accepted Rajić’s guilty plea for grave breaches of the Geneva Conventions
for willful killing, inhumane treatment, appropriation of property, and extensive destruction not
justified by military necessity; the Trial Chamber considered Rajić evading justice and the heinous acts
he committed aggravating factors for his sentence, but considered his sincere remorse in his statement
of guilt and help for the prosecution to learn what happened in Stupni Do and Vareš mitigating factors.
The Trial Chamber sentenced Rajić to 12 years’ imprisonment.

The 1991 Persian Gulf war and the Temple of UR Case

The principle of distinction imposes obligations on both attacking and defending forces. Defending
forces must not place civilian persons or objects near military targets in order to render the targets
immune from attack.25 Nonetheless, if defending forces violate this rule, it is still unlaw-ful to directly
target the civilian objects.26 During the Persian Gulf War in 1991, for example, Iraqi forces stationed
two fighter aircraft next to the historic Temple of Ur in the hope that the possibility of damaging the
temple would deter attacks on the aircraft.27 This strategy clearly violated Iraq’s obligations under the
law of armed conflict, but it did not remove the status of the temple as a civilian object. The legality
of any attack on the aircraft in such circumstances would have to be assessed by reference to the
doctrine of proportionality. We will return to this topic at greater length below.

Proportionality
 Doctrine of Proportionality-
- Proportionality prohibits attacks that may be expected to cause damage to civilians and
civilian objects that is excessive in relation to the anticipated military advantage.
- The advantage anticipated must be exclusively military and it must also be ‘concrete and
direct.
- Proportionality therefore cannot be used to justify an attack deliberately targeting civilian
objects, even if it might conceivably result in a military advantage. A military advantage
can only consist of gaining ground or destroying or weakening the enemy armed forces
and cannot be constituted by creating conditions conducive to surrender by targeting the
civilian population.
- Article 57(1) of Additional Protocol I- ‘[i]n the conduct of military operations, constant
care shall be taken to spare the civilian population.
- the attacking force has a duty to choose the option that presents the least danger to civilian
lives and property.

Internment/Displacement of civilians.

The internment of civilians was a significant feature of the Second World War and led to widespread
mistreatment. International humanitarian law recognises that internment of civilians may in some
cases be necessary for security, but seeks to place the practice within strict limits. Article 79 of Geneva
Convention IV provides that protected persons shall not be interned except for imperative security
reasons or due to the commis-sion of an offence. The protections for interned civilians are
substantially identical to those afforded to prisoners of war, which will be considered in Chapter 5.
There are also some protections afforded to interned civilians under Geneva Convention IV that have
no direct parallels for prisoners of war. For example, the family life of civilian internees must be
preserved as far as possible and they should be allowed to receive regular visitors, especially close
relatives.73 They may not generally be put to work, except on a voluntary basis.74
Human Shields.
With respect to non-international armed conflicts, Additional Protocol II does not explicitly mention
the use of human shields, but such practice would be prohibited by the requirement that “the civilian
population and individual civilians shall enjoy general protection against the dangers arising from
military operations”.[9] It is significant, furthermore, that the use of human shields has often been
equated with the taking of hostages,[10] which is prohibited by Additional Protocol II,[11] and by
customary international law (see Rule 96). In addition, deliberately using civilians to shield military
operations is contrary to the principle of distinction and violates the obligation to take feasible
precautions to separate civilians and military objectives

In the context of international armed conflicts, this rule is set forth in the Third Geneva Convention
(with respect to prisoners of war), the Fourth Geneva Convention (with respect to protected civilians)
and Additional Protocol I (with respect to civilians in general).[1] Under the Statute of the
International Criminal Court, “utilizing the presence of a civilian or other protected person to render
certain points, areas or military forces immune from military operations” constitutes a war crime in
international armed conflicts.

The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the
Statute of the International Criminal Court are couched in terms of using the presence (or movements)
of civilians or other protected persons to render certain points or areas (or military forces) immune
from military operations.[18] Most examples given in military manuals, or which have been the object
of condemnations, have been cases where persons were actually taken to military objectives in order
to shield those objectives from attacks. The military manuals of New Zealand and the United
Kingdom give as examples the placing of persons in or next to ammunition trains.[19] There were
many condemnations of the threat by Iraq to round up and place prisoners of war and civilians in
strategic sites and around military defence points.[20] Other condemnations on the basis of this
prohibition related to rounding up civilians and putting them in front of military units in the conflicts
in the former Yugoslavia and Liberia.[21]

In the Review of the Indictments in the Karadžić and Mladić case, the International Criminal Tribunal
for the former Yugoslavia qualified physically securing or otherwise holding peacekeeping forces
against their will at potential NATO air targets, including ammunition bunkers, a radar site and a
communications centre, as using “human shields”.[22]

It can be concluded that the use of human shields requires an intentional co-location of military
objectives and civilians or persons hors de combat with the specific intent of trying to prevent the
targeting of those military objectives.

Medical Neutrality in war zones.

Medical Units-
- all medical personnel, whether military or civilian, enjoy special protection under the
- Geneva law
- Article 12 of Additional Protocol I provides that medical units are not to be the object of
attack.(Both military and civilian)
- Articles 19 and 24 of Geneva Convention I likewise state that medical units shall not be
attacked, but must be respected and protected in all circumstances.
- This principle is recognised as holding customary law status in both international and non-
international conflicts.
- Article 8 of AP 1 defines medical personnel as- those whose function is exclusively to
search for, collect, transport, diagnose or treat the wounded, sick and shipwrecked, or to
administer medical units or medical transports.
- Medical personnel can carry ‘light individual weapons’ for their own protection without
losing their protected status. They may also be guarded by sentries or an escort.
- Medical personnel enjoy immunity against any kind of punishment for administering
treatments compatible with medical ethics.
- medical personnel cannot be punished for carrying out their duties.
NIAC’s under AP and Common Article 3 GC. (Prosecutor v. Tadic and ICTY 2008 Trial Chambers
Case).

Common Article III of Geneva Convention

o Principles:
i. For the first time covered NIAC
ii. Functions like a mini-convention
iii. It is based on the principle of humane treatment
iv. It established fundamental rules from which no derogation is
permitted
v. No specific treaty law was dealing with NIACs before Common Art
III
vi. Later NIACs were covered by Additional Protocol II, 1988
o Contents:
i. Human Treatment for all persons in enemy land without
discrimination
ii. Prohibits murder, mutilation, torture, taking of hostages, unfair trials,
and cruel, humiliating, and degrading treatment
iii. Wounded and shipwrecked to be cared for
iv. ICRC to offer support

· Distinction between Common Article III of the Geneva Convention and Additional
Protocol II

Common Article III of the Geneva Additional Protocol II

Convention

State armed force must be involved Between State and Organized Armed Group (OAG) or
(State + OAG) between OAG and OAG
 Narrowed down definition of NIAC Holds same definition as C.A III

Approved the Principle of Margin of

Appreciation

A.UNCRC
Article 38- Cannot recruit a child u/a 15 years.
i. No voluntary enlistment
ii. No direct hostilities

Child between 15-18 years:

• can take part in direct hostilities
• Compulsory + Voluntary recruitment can be done.

B.OPAC
• Direct participation + compulsory recruitment is not allowed under the age of 18 years.
• Voluntary enlistment = 15-18 years permitted
• No direct hostilities
• Recruitment of child soldiers can only be done by the State and not by Non State Actors
(NSA).
• Consent of the child and the guardian is required, plus the child should be aware about the
participation in the war.

Definitions of “War crime” under Art. 8 (2) (b) (xxvi) & (R) (vii) of the Rome Statute.

Who is a combatant?
A combatant is a person who is entitled to status of prisoner of war, under a command with distinct
embelem, openly carries arm and follows certain IHL principle like openly display arms and embelem.
GenevaConvention AP1 Article____.
Combatants:
• Article 4 of Geneva Convention 3: A combatant is a person who is entitled to prisoner-
of-war status and cannot be prosecuted for participation in hostilities. He has a distinct
emblem and is authorized to carry arms
• Article 43(2) of Additional Protocol 1: Member of armed conflict of a party to a
conflict that have the right to directly participate in hostilities. This means that if any
civilian picks up arms then he is not considered as a combatant. (eg: David Hicks who
picked up arms against Taliban but was punished for it)
Right to participate in any Hostilities (Article 43 (2), AP1: Members of the armed forces of a Party to
a conflict are combatants, that is to say, they have the right to participate directly in hostilities.):
Question that what in case where civilian picks up arms in good spirit, this happen in case of David
(Australian man) where he picked arms against taliban for USA and charged for killing anti taliban
party men under US military commission act. Can citizen participate in hostility and is this exception.
The law was amended and was named unprivileged combatant, person put into quantanamo bay. No
express provision for barring non-combatant but then it loses the privilege of civilian. But another
view believes in principle of distinction does not allow non-combatant to participate in hostilities (here
it is for love for country and not self defence) and immunity is lost.
Significance of combatant status especially in the context of unprivileged belligerent?

We saw above that Article 43(2) of Additional Protocol I designates combatants as the primary agents
of warfare under international humanitarian law. Beyond that, however, the provision is open to two
divergent interpretations. The pivotal question here is what Article 43(2) means when it says that
combatants ‘have the right to participate directly in hostilities’. One way of interpreting this provision
would be to infer that only combatants have the right to participate in hostilities. This would make it
a violation of international humanitarian law for a non-combatant to engage directly in armed conflict.
- Combatants are protected by the law of armed conflict in a number of different ways.
- Combatants engaged in active hostilities are protected by the restrictions on means and
methods of warfare.
Combatants also benefit from the restrictions on means and methods of warfare imposed by the
doctrine of military necessity, the prohibitions on specific types of weapons deemed to cause
unnecessary suffering and the rules concerning perfidy and forbidden orders.

Case study on David Hicks -A civilian turned combatant.

An example of this interpretation can be found in §950v(15) of the Military Commissions Act of 2006,
the United States statute passed to govern military commissions hearing charges against detainees at
Guantanamo Bay. That provision made it a crime under United States law, punishable by death, to
intentionally kill ‘one or more persons, including lawful combatants, in violation of the law of war’. In
March 2007, the provision was used as the basis for a charge against Australian detainee David Hicks,
based on the allegation that he attempted to shoot anti-Taliban forces during the war in Afghanistan.
It was not alleged that Hicks fired on civilians, which is a serious violation of international
humanitarian law. Rather, the allegation was that he attempted to kill members of opposing armed
forces. On the face of it, this seems odd. After all, attacking opposing forces is part and parcel of
armed conflict. There were numerous soldiers on both sides of the conflict doing what Hicks was
alleged to have done. The basis for the charge, however, seems to have been that, according to the
United States government’s interpretation of international law, Hicks was not entitled to take part in
hostilities. He was what the Military Commissions Act of 2006 described as an ‘unlawful enemy
combatant’.4 The charge against Hicks under §950v(15) was dropped before trial. The United States
Congress subsequently enacted a revised Military Commissions Act of 2009, which removed the term
‘unlawful enemy combatant’, replacing it with ‘unprivileged enemy belligerent’. This change in
terminology seems to signal a shift in the United States government’s stance on whether non-
combatants are prohibited under international humanitarian law from taking up arms. However, the
crime of ‘murder in violation of the law of war’, previously contained in §950v(15), remains largely
unchanged.

Duties of Combatants : Superfluous injury/Military

necessity/Proportionality/Distinction/Indiscriminate attacks
1. What are the primary duties of a combatant under IHL?
- Combatants have the following duties
 a. Combatants must distinguish themselves from the civilian population wherever
possible.
b. This should generally involve wearing a fixed, distinctive sign.
c. They must carry arms openly whenever mobilising or launching an attack.
d. Combatants must respect the rules of international humanitarian law, although a
failure to do so does not make them subject to reprisals or deprive them of prisoner
of war status.
e. They must also be subject to a system of responsible command which enables those
who violate the law to be held accountable.
f. To avoid superfluous injuries/unnecessary suffering
g. To keep in mind the Doctrine of Military Necessity
h. To keep in mind the Principle of Distinction
i. To keep in mind the Principle of Proportionality
j. To avoid indiscriminate attacks.

Duties of Combatants: A number of the basic obligations of combatants under international

humanitarian law are already implicit in the definition of combatant status discussed above.
Combatants must distinguish themselves from the civilian population wherever possible. This should
generally involve wearing a fixed, distinctive sign. They must carry arms openly whenever mobilising
or launching an attack.20 Combatants must respect the rules of international humanitarian law,
although a failure to do so does not make them subject to reprisals or deprive them of prisoner of war
status.21 They must also be subject to a system of responsible command which enables those who
violate the law to be held accountable.22 There are a range of other basic duties conferred on
combatants by international humanitarian law. We will consider a number of these in the following
sections. The discussion will be structured around the fundamental principles of international
humanitarian law that govern this area. We will see that the conduct of combatants is governed by a
web of distinct but mutually supporting legal doctrines. These doctrines provide the framework within
which military commanders must make operational decisions. They also impose limits on the
permissible conduct of ordinary combatants
 A. Doctrine of Humanitarianism:
• It brings moral limits back into war by seeking to moderate the effects of
warfare.
B. Principle of Neutrality:
• IHL is common for parties on both sides of a conflict even if one is an
unjust aggressor and the other is an innocent party.
• The same rules apply to everyone
- Principle of Superfluous Injury:
• The basic idea of this principle is to avoid unnecessary suffering.
• The attacking forces are prohibited from inflicting injury on opposing
combatants beyond what is necessary to remove them from active
combat.
- Doctrine of Military Necessity:
• Permissive Doctrine – permits whatever is necessary to achieve a military objective
• armed forces can do whatever is necessary—provided always that it is not otherwise
unlawful under humanitarian law—to achieve their legitimate military objectives in
warfare
• Hague Convention, 1907 – diminishing of evils of war, seizing of
underwater communication cables, etc.
- Doctrine of Distinction:
A. Principle of Distinction –
- A central doctrine of international humanitarian law relating to civilians is the principle of
distinction.
- The principle stipulates that parties to a conflict must consistently distinguish combatants
and military targets on the one hand from civilian persons and objects on the other.
- Attacks must never be directed against civilians or civilian objects.
- Acts or threats of violence designed to spread terror among the civilian population are
also prohibited.
- The principle of distinction was first set out in the Preamble to the St Petersburg
Declaration.
 - It was subsequently recognised in the Hague Regulations and restated in both Additional
Protocols of 1977
- It is also a principle of customary international law applicable in both international and
non-international conflicts.
- The International Court of Justice has described it as one of the ‘intransgressible principles
of international customary law.
C. The principle mandates a distinction in terms of both people (combatants and
civilians) and property (military and civilian objects).Doctrine of Double Effect:
• it is sometimes permissible to cause a harm as a foreseen, but unintended,
side effect of an act, although it would not be permissible to intentionally
cause the same harm, either as an end in itself or as a means to an end
D. Doctrine of Indiscriminate Attacks:
The provision then goes on to clarify that attacks are considered indiscriminate if
they:
2. are not directed at a specified military objective;
3. employ a method that cannot be directed at a specific military objective;
or
4. apply a method or means of combat the effects of which cannot be limited
to a specific military objective.
5. The principle of distinction and the doctrine of proportionality are further supplemented by a
general prohibition on indiscriminate attacks. Article 51(4) of Additional Protocol I states that
‘[i]ndiscriminate attacks are prohibited.’ The provision then goes on to clarify that attacks are
considered indiscriminate if they:
6. are not directed at a specified military objective;
7. employ a method that cannot be directed at a specific military objective; or
8. apply a method or means of combat the effects of which cannot be limited to a specific military
objective.
9. The three limbs of this definition each cover a specific type of case. The first limb deals with
attacks that are indiscriminate in the sense that they are not directed at a specific, identifiable
military target. This limb therefore reinforces the principle of distinction, providing that every
attack must have a legitimate military objective as its end. The second limb deals with attacks
that use a type of weapon or a method of targeting that is incapable of being spatially limited
 to a specific military objective. This means that attacks that are ostensibly directed at a
particular military objective will still be indiscriminate if the means or method of attack
employed is incapable of being confined to that target. The third limb covers attacks whose
effects cannot be confined to a specific military objective. This overlaps with the second limb
discussed above, but it also covers attacks that may be capable of being confined to a military
target at the time they are launched, but will have subsequent effects extending beyond that
objective.

Bombardement/Targeting/Nuclear Weapons-ICJ Opinion/Ruses and Perfidy.

1. What are the rules on bombardement?

Ans. 14) An area bombardment is considered to be an indiscriminate method of attack (acc to Article
51(5)(a) of AP 1). There lies a duty on military commanders to target bombing campaigns at a specific
military objective, rather than targeting multiple objectives in a way that includes civilian objects. The
rules and practices governing this area are often called the rules of targeting. The draft Hague rules
said that bombardment is legitimate only when directed at a military objective and it should be ensured
that such tactics comply with military necessity and the principle of distinction. Use of ‘smart bombs’
helps to certain extent in sticking to rules on bombardment to reduce casualties. Still there is a need
for military commanders to make complex and difficult judgments concerning the likely impact of a
planned bombardment on both military and civilian objects and assess the appropriateness of the
attack in light of that information.

1. What are ruses and perfidy?

Ruses: Ruses are tactics that are allowed to be carried out.

- Article 23 of the Hague Regulations specifies acts like making improper use of a flag of truce,
of the national flag, insignia or uniform of the enemy, as well as the distinctive badges of the
Geneva Convention.
 - Article 24 says that ruses of war and the employment of measures necessary for obtaining
information about the enemy are considered permissible.

- Article 37(1) of AP 1: acts inviting the confidence of an adversary to lead him to believe that
[she or] he is entitled to, or obliged to accord, protection under the rules of IHL with intent
to betray that confidence, shall constitute perfidy.

- Some examples are then given, including feigning an intent to negotiate by using a flag of
truce or surrender, feigning incapacitation by wounds or sickness, feigning civilian or non-
combatant status and feigning protected status by using Red Cross, UN or neutral insignia.

Perfidy:

Perfidy refers to the means and methods of warfare which are not allowed; for eg, in the case of the
civil war in Colombia; Colombian military used the Red Cross Emblem in Rescue and posed as doctors
to the rebels; upon entering the area, they shot all the combatants; thus misuse just to achieve military
advantage.

- Article 37(2) of Additional Protocol I, which holds that ‘[r]uses of war are not prohibited.
Such ruses are acts which are intended to mislead an adversary [. . .] but which infringe no rule
of [international humanitarian law] [. . .] because they do not invite the confidence of an
adversary with respect to protection under that law’. Examples of ruses set out in the provision
include the use of camouflage, decoys, mock operations and misinformation. The prohibition
on perfidy makes it a violation of international humanitarian law to pretend to hold protected
status in order to invite the confidence of the enemy. A flagrant example of perfidy would be
using an ambulance marked with the Red Cross emblem to covertly transport troops and
launch an armed attack. It is likewise prohibited for combatants on the battlefield to play dead,
feign injury or express an intention to surrender in order to lull the enemy into a false sense
of security. The reason for these prohibitions should be obvious: the protections international
humanitarian law affords to vulnerable groups will be of little avail if they are abused for
military purposes.

Cultural Protection.
Protecting culturally significant buildings and objects from warfare has long been a concern of
international humanitarian law. According to Article 27 of the Hague Regulations, ‘all necessary steps
must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable
purposes [and] historic monuments’. Article 53 of Additional Protocol I contains similar protections,
providing that ‘[i]t is prohibited to commit any acts of hostility directed against the historic
monuments, works of art or places of worship which constitute the cultural or spiritual heritage of
peoples; to use such objects in support of the military effort; [or] to make such objects the object of
reprisals’. According to Rule 38 of the ICRC study on customary international humanitarian law,
parties to a conflict must take special care to avoid damage to cultural objects that are not military
targets. Cultural property must not be attacked, unless required by military necessity. Rule 39 like-wise
provides that cultural property must not be used for purposes likely to expose it to destruction, unless
imperatively required by military necessity, while Rule 40 makes clear that wilful damage, theft or
vandalism of cultural property is prohibited.

Refer ICRC Case Compendium.

Covered above

The impact of UNSC/UN resolutions on IHL

This overview of the United Nations'involvement in promoting and implementing international
humanitarian law makes no claim to be complete. But despite the sketchy character of this study, a
clear conclusion can be drawn: the United Nations system not only views itself as concerned by
international humanitarian law, but its various bodies have, in fact, become quite active, promoting
the law itself and strengthening its implementation. It appears that such active involvement has grown
over the years. At its fiftieth anniversary the UN is more heavily engaged in matters relating to
international humanitarian law than it was at its twenty-fifth or its tenth anniversary.

The various UN bodies have contributed to humanitarian policy in different ways: - statements on the
applicability of international humanitarian law to specific conflicts; - general appeals (i.e. not related
to a specific violation of a treaty provision) addressed to warring parties asking them to comply with
their obligations under international humanitarian law;

- references to international humanitarian law in Security Council resolutions on economic sanctions;

- fact-finding in cases of alleged violations of international humanitarian law;

- statements in the event of specific vi olations of international humanitarian law;

- appeals to third States for action to bring a belligerent to respect its obligations under humanitarian
law ( " to ensure respect " ).

Practice shows the Organization's willingness to take such action not only in

connection with international but also non-international armed conflicts.

The United Nations'increased interest in international humanitarian law is a welcome

development. Indeed, though humanitarian in its aim and non-political in its substance, humanitarian
law needs the support of political institutions in order to be fully accepted and complied with by States
and other parties to armed conflict. As the paramount and truly universal institution, the UN is a
unique international platform for expressing the concerns of the victims and also concern for the
victims of armed conflict.

Meaning of persecution under the 1951 Convention and grounds of persecution with specific
reference to membership of a particular social group.

Persecution = serious harm + the failure of State protection Whether an individual faces a risk of
persecution requires identification of the serious harm faced in the country of origin and an assessment
of the State’s ability and willingness to respond effectively to that risk.46 Persecution is the construct
of two separate but essential elements, namely risk of serious harm and failure of protection. This can
be expressed in the formula: persecution = serious harm + the failure of State protection. Women
often experience persecution differently from men.48 In particular, they may be persecuted through
sexual violence or other gender-specific or gender-related persecution.49 Such violence must be given
a broad interpretation and may be defined as any act of gender-related violence that results in, or is
likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of
such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life.50
Violence against women is to be understood to encompass, but not be limited to:51 1. physical, sexual,
and psychological violence occurring in the family, including battering, sexual abuse of female children
in the household, dowry-related violence, marital rape, female genital mutilation and other traditional
practices harmful to women, non-spousal violence, and violence related to exploitation; 2. physical,
sexual, and psychological violence occurring within the general community, including rape, sexual
abuse, sexual harassment, and intimidation at work, in educational institutions and elsewhere,
trafficking in women, and forced prostitution;52 and physical, sexual, and psychological violence
perpetrated or condoned by the State, wherever it occurs. In conclusion, developments in international
human rights law and international humanitarian law, including international jurisprudence, as well as
substantial advancements in State practice, in case law, and in academic writing, have seen progress
towards a gender-sensitive interpretation of the provisions of the 1951 Convention in many
jurisdictions. State practice, while variable, demonstrates a convergence of understanding that the
refugee definition, properly interpreted, can encompass gender-related claims. It has also strengthened
the ability of women claimants in particular to access gender-sensitive asylum procedures, and to have
their claims interpreted beyond the narrow confines of a framework of male experiences. The text,
object, and purpose of the 1951 Convention, including the principle of non-discrimination, require a
gender-inclusive and gendersensitive interpretation, without which gender biases can be reinforced.
In this respect, there is no need to add a sixth ground to those already enumerated in the 1951
Convention itself.

Application of refugee Law in India

India’s obligation under International law
Non-refoulement is an established rule international law. Apart from the Refugee Convention, its
reference can be found in other international instruments to which India is a party. For instance, the
International Covenant on Civil and Political Rights to which India acceded, implicitly obligates the
parties under Article 7 not to refoul individuals to a place where they can be subjected to torture or
cruel or inhumane treatment. This interpretation has been unequivocally stated by the U.N. Human
Rights Committee. A similar approach towards the inclusion of non-refoulement has been taken in
the International Convention on the Elimination of All Forms of Racial Discrimination and
Convention on the Rights of the Child, to which India is also a party. Further, the Convention Against
Torture makes an express mention of non-refoulement under Article 3. Although India is a signatory
to the Convention and not bound by its terms, prohibition of torture has certainly acquired the status
of jus cogens norms, which cannot be derogated by States. Prohibition of torture encapsulates an
associated obligation to not send individuals to a place where they may suffer such a treatment or
punishment by another State. Hence, sending Rohingya refugees to Myanmar would be in clear
violation of a jus cogens norm and India is therefore bound to follow the rule of non-refoulement.
There is also rich literature that supports the fact that non-refoulement has indeed acquired the status
of international customary law. In an advisory opinion of the UNHCR, it was noted that non-
refoulement constitutes a customary law and is binding on all States, including those who are not a
party to the Refugee Convention and the 1967 Protocol.
In fact, the debate has gone even further as many academic writings argue that the rule is acquiring
the position of a jus cogens norm, a fundamental obligation that all the States need to follow. The
Executive Committee Conclusion No. 25 on International Protection, UNHCR (1982) suggested that
non-refoulement is “progressively acquiring the character of a peremptory rule of international law.”
The peremptory or jus cogens norms cannot be derogated by States. While the jus cogens status of
non-refoulement may still be debatable, it is nonetheless certain that the rule has emerged to be
customary international law and therefore must be respected by all countries. Given the customary
nature of the rule and India’s obligation under different treaties/conventions, it is legally bound to
follow it.

Principle of non-refoulement

The non-refoulement rule in the Indian context

As per Article 33 of the Refugee Convention, no refugee should be expelled or returned to a territory
where the life or freedom of the refugee would be threatened based on race, religion, political opinion,
nationality, or membership in a particular group. However, India is not a party to the Refugee
Convention or its Protocol (1967) and does not have any legislation that recognizes this rule. Presently,
there are 146 States that are a party to the Refugee Convention and 147 States that are a party to its
Protocol. India is one of the few countries in the world that is not a party to either of them. Given the
lack of a proper legal framework to support refugees, the courts in India have, time and again,
intervened on humanitarian grounds and decided upon the issues relating to refugees and their
deportation. In the past, Indian courts have dealt with refugee issues from Bangladesh, Sri
Lanka, Iraq, Iran, and other countries. In many of these cases, the courts have halted deportations and
allowed individuals to register with the UNHCR and avail its protection. However, the process is not
backed by any domestic legislation. Even the presence of UNHCR in India is not supported by any
statute as its operations are based solely on political agreements. In a country where courts rely heavily
on domestic legislation, the lack of statutory recognition poses difficulties.
Further, Indian immigration laws provide sweeping powers to the government. Noteworthy amongst
them is Section 3 (1) of the Foreigners Act, which states that the government has the power to prohibit
or regulate the entry of foreigners in India or their departure therefrom. The Act does not refer to the
rule of non-refoulement and provides complete authority to the government to decide the fate of
individuals.

Means and Methods of Warfare:

• Absolute warfare:
• The notion of absolute warfare refers to an armed conflict where all moral rules are
suspended
• propounded by the Prussian military theorist General Carl von Clausewitz
• If winning is guaranteed then the means is justified
• It has three major principles:
• Use of utmost force
• Aim is to disarm the army
• Utmost exertion of power
• It is not followed anymore