PUBLIC INTERNATIONAL LAW - NOTES

Jus in Bello Jus ad Bellum

(Law of Conduct in War) (Law on the Use of Force)

Jus in Bello refers to the set of legal (moral justifications for going to war)
norms that govern the conduct of Jus ad Bellum refers to the set of legal
parties engaged in armed conflict. It norms that determine the conditions
focuses on how war is fought, regardless under which states may resort to the
of the reasons for the war. use of force. It focuses on the
justification for going to war.
1. Distinction: Parties to a conflict must
distinguish between combatants and 1. Just Cause: Force can only be used
non-combatants. for reasons such as self-defense or
2. Proportionality: The harm caused to with the authorization of the United
civilians and civilian property must be Nations Security Council.
proportional to the direct military 2. Right Authority: The decision to use
advantage anticipated from an attack. force must be made by a legitimate
3. Military Necessity: Only those authority, typically a sovereign state or
measures which are necessary to an international body like the United
achieve a legitimate military objective Nations.
are permitted. 3. Right Intention: The use of force
4. Humanity (Unnecessary Suffering): must aim to achieve a just cause and
The infliction of suffering, injury, or not be driven by motives such as
destruction not necessary for revenge or territorial gain.
achieving a legitimate military 4. Last Resort: Force must only be
objective is prohibited. used after all peaceful alternatives
5. Non-Discrimination: All persons have been exhausted.
affected by armed conflict must be 5. Probability of Success: There
treated without adverse distinction should be a reasonable chance of
based on race, religion, sex, or similar achieving the intended outcome
criteria. through the use of force.
6. Proportionality: The anticipated
Legal Instruments: benefits of the use of force must be
 Geneva Conventions and their proportional to the expected harm.
Additional Protocols
 Hague Conventions Legal Instruments:
 United Nations Charter

IHL is JUS IN BELLO

International Humanitarian Law (IHL):

 Laws of War or Laws of Armed Conflict.

 Applies only in Armed Conflicts (Internal or International) E.g., War between 2 States
or Large-Scale Internal Armed Conflict with Government (Revolution).
 IHL is a set of rules which seek, for humanitarian reasons, to limit the effects of
armed conflict. IHL protects persons who are not or are no longer participating in
hostilities and restricts the means and methods of warfare.
History of IHL:

 Father of International Humanitarian Law (IHL): Henry Dunant

Battle of Solferino:

 In 1859, Henry Dunant witnessed the aftermath of the Battle of Solferino in Italy,
where he saw the suffering of thousands of wounded soldiers left without adequate
medical care. Deeply moved by this experience, Dunant organized local villagers to
provide care for the wounded, regardless of which side they fought for.
Book: "A Memory of Solferino":

 In 1862, Dunant published "A Memory of Solferino," detailing his experiences and
proposing the creation of national relief societies to provide care for the wounded
during wartime. He also suggested the establishment of an international agreement
to protect the wounded and those who care for them.
Founding of the International Committee of the Red Cross (ICRC):

 In 1863, Dunant, along with four other Geneva citizens (Gustave Moynier,
Guillaume-Henri Dufour, Louis Appia, and Théodore Maunoir), founded the
International Committee for Relief to the Wounded, which later became the
International Committee of the Red Cross (ICRC).
First Geneva Convention:

 Largely inspired by Dunant's advocacy, the First Geneva Convention was adopted in
1864. It established the principles for the humane treatment of wounded soldiers and
the protection of medical personnel and facilities in armed conflict.
 The convention marked the beginning of modern IHL and set the precedent for
subsequent treaties and conventions aimed at mitigating the human suffering
caused by war.
Purpose of IHL:

The purpose of International Humanitarian Law (IHL) is to mitigate the human suffering
caused by armed conflicts and to ensure a minimum standard of humanity in situations
of war. This is achieved through specific objectives and principles, which include:

 Protection of Non-Combatants and Those No Longer Participating in Hostilities.

  Limitation of Means and Methods of Warfare. (Restrict the use of weapons,
chemicals.)
 Maintenance of Humanitarian Standards During Conflicts.
 Facilitation of Aid and Relief Operations. (humanitarian aid, Operations of ICRC)
 Promotion of Accountability and Prevention of War Crimes.

Division of IHL:

1. Hague Law: Focuses on the means and methods of warfare. It includes rules
governing the conduct of hostilities, the use of certain weapons, and the protection of
certain places and objects.
Hague Conventions: Addressed the conduct of hostilities and the means and
methods of warfare.
Hague Conventions of 1899:

 Established the Permanent Court of Arbitration in The Hague, Netherlands.

 Outlawed the use of certain weapons and warfare tactics, such as
asphyxiating gases and expanding bullets.
 Set forth rules for the treatment of prisoners of war.

Hague Conventions of 1907:

 Expanded on the regulations established in the 1899 convention.

 Introduced rules on the conduct of naval warfare.
 Established the principle of neutrality, which outlines the rights and obligations
of neutral nations during wartime.

2. Geneva Law: Focuses on the protection of victims of armed conflicts, including

wounded and sick soldiers, shipwrecked sailors, prisoners of war, and civilians. It is
enshrined in the Geneva Conventions and their Additional Protocols.
Geneva Convention:

 GC1 - 1864: Protects Wounded, Sick Soldiers at Land.

 GC2 - 1906: Protects Wounded, Sick and Shipwrecked Military Personnel at
Sea.
 GC3 - 1929: Treatment of Prisoners of War.
 GC4 - 1949: Protection of Civilian Persons.

Additional Protocols of GC:

AP1 - 1977: International Armed Conflict and Protection of Civilians (IAC)
AP2 - 1977: Non-International Armed Conflict (NIAC)
AP3 - 2005: Adoption of an additional distinctive emblem (the Red Crystal)
Implementation and Enforcement:
  International Committee of the Red Cross (ICRC): Plays a key role in
promoting and ensuring compliance with IHL.
 International Criminal Court (ICC): Prosecutes individuals for war crimes,
crimes against humanity, and genocide.
 Ad hoc Tribunals: Such as the International Criminal Tribunal for the former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).
 National Implementation: States are required to implement IHL through
national legislation and military manuals.

Sources of IHL:

1. Treaties and Conventions:

 Geneva Conventions (1949)
 Additional Protocols to the Geneva Conventions (1977, 2005)
 Hague Conventions (1899, 1907)
 Chemical Weapons Convention (1993)
 Biological Weapons Convention (1972)
 Convention on Certain Conventional Weapons (1980)
2. Customary International Law:
 ICRC’s project on customary IHL: 161 Rules
3. General Principles of Law:
 Principle of Humanity.
 Principle of Proportionality.
 Martens Clause.
4. Judicial Decisions:
 Decisions of International Criminal Tribunals.
5. Writings of Legal Scholars:
 Jean Pictet.
 Marco Sassoli.

Applicability of IHL:

1. International Armed Conflict (IAC):

An International Armed Conflict (IAC) is a conflict between two or more states. It may
involve regular armed forces or other organized armed groups acting on behalf of
states.
Forms in which IHL will Apply:
1. Declared War without effective Hostilities. E.g., Latin American States’
declaration of war against Germany during the WWII.
2. Effective Hostilities even without Declaring War. E.g., US-UK Coalitions’
bombing of Iraq in 2003.
3. Total or Partial Military Occupation without Resistance. E.g., German
invasion in Denmark in 1940.
 4. Fight against Colonial or Alien Occupation. E.g., Indian Independence
Movements.
Applicability of IHL:

 The full body of IHL, including the Geneva Conventions and their Additional
Protocols, applies during IACs. Common Article 2 of GCs and AP1 applies.
 Parties to the conflict must adhere to the rules and principles of IHL governing
the conduct of hostilities, the treatment of prisoners of war, the protection of
civilians, and other relevant provisions.
Examples:

 World War II: A classic example of an IAC involving multiple states engaged in
prolonged conflict, resulting in extensive application of IHL principles.
 Gulf War (1990-1991): An armed conflict between Iraq and a coalition of states
led by the United States, where IHL governed the conduct of hostilities, treatment
of prisoners of war, and protection of civilians.

2. Non-International Armed Conflict (NIAC):

A Non-International Armed Conflict (NIAC) is a conflict that occurs within the territory of
a single state between government forces and one or more non-state armed groups, or
between such groups themselves.
Forms in which IHL will Apply:
1. Between Government Authorities and Armed Organized Groups. E.g.,
Syria: Armed Conflict between Syrian Government and the rebellion groups
2. Between Armed Organized Groups. E.g., Somalia conflicts between the
armed groups.
3. Between Armed Forces and Dissident Armed Forces. E.g., Conflicts
between Colombian Armed Forces and Revolutionary Armed Forces of
Colombia (FARC).
Applicability of IHL:

 Common Article 3 of the Geneva Conventions applies as a minimum standard

during NIACs. It provides basic protections for individuals not or no longer
participating in hostilities, regardless of their status.
 Additional Protocol II (for conflicts occurring within the territory of a High
Contracting Party) or customary IHL (for conflicts occurring within the territory of
a non-High Contracting Party) may apply, providing additional protections to
persons affected by the conflict.
Examples:

 Syrian Civil War: A protracted armed conflict within the territory of Syria
involving government forces, various armed opposition groups, and non-state
 actors. Common Article 3 and customary IHL apply to protect civilians and
combatants not taking part in hostilities.
 Colombian Armed Conflict: A decades-long conflict between government
forces, paramilitary groups, and guerrilla organizations like the FARC. Common
Article 3 and Additional Protocol II apply to regulate the conduct of hostilities and
protect affected populations.
Situations of Non-Application:

 Internal violence and tensions such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed conflicts

International Human Rights Law (IHRL):

International Human Rights Law (IHRL) is a body of international law designed to

protect and promote human rights at the international, regional, and domestic levels. It
establishes the obligations of governments to act in certain ways or to refrain from
certain acts in order to promote and protect the human rights and fundamental
freedoms of individuals or groups.
Sources of International Human Rights Law:

1. Treaties and Conventions:

Bilateral and Multilateral Treaties: Formal agreements between states that are legally
binding.
Examples: The ICCPR, ICESCR, CEDAW, CRC, and CRPD.
2. Customary International Law:

Definition: Practices and norms that, through consistent and general practice by
states, are accepted as legally binding.
Examples: The prohibition of torture, genocide, slavery, and racial discrimination are
considered customary international law.
3. General Principles of Law:

Definition: Fundamental principles that are recognized by a large number of states'

legal systems and thus applicable in international law.
Examples: Principles of justice, equity, and good faith.

Kinds of Human Rights

Civil and Political Rights Economic, Social, Cultural Rights of Specific Groups
Rights
 Right to Life  Right to Work  Convention on the Elimination
 Right to Freedom of  Right to Access Medical Care of All Forms of Discrimination
 Expression  Right to Accessible Education Against Women (CEDAW)
 Right to Privacy  Right to Adequate Food  Convention on the Rights of
 Right to Asylum  Right to Affordable Sanitation the Child (CRC)
 Right to a Fair Trial and Due and Clean Water  Convention on the Rights of
Process  Right to Take Part in Cultural Persons with Disabilities
 Right to Freedom of Religion Life (CRPD)
 Right to Freedom from  Right To Enjoy the Benefits of  International Convention on
Discrimination. Scientific Progress the Elimination of All Forms of
 Right to Social Security Racial Discrimination (ICERD)
 Declaration on the Rights of
Indigenous Peoples (UNDRIP)
 International Covenant on  International Covenant on
Civil and Political Rights Economic, Social and Cultural
(ICCPR) Rights (ICESCR)
 European Convention on  European Social Charter
Human Rights (ECHR)

Similarities and differences between IHL and International Human Rights Law.

Similarities:

1. Common Objectives:
 Both IHL and IHRL aim to protect individuals and ensure humane treatment.
 They both seek to limit suffering and uphold human dignity.
2. Sources of Law:
 Both IHL and IHRL derive from international treaties, customary international law,
general principles of law, judicial decisions, and scholarly writings.
 They are influenced by the same fundamental principles of humanity and justice.
3. Complementary Nature:
 Both bodies of law can be complementary. IHRL continues to apply during armed
conflicts, alongside IHL.
 Together, they provide a comprehensive framework for the protection of human
rights in various situations.
4. Protection of Non-Combatants:
 Both IHL and IHRL provide protections for civilians and other non-combatants.
 They ensure the protection of basic human rights such as the right to life,
prohibition of torture, and protection from inhumane treatment.
5. Enforcement and Trials:
 Violators of both IHL and IHRL can be prosecuted in national courts or
international mechanisms. IHL violators can be tried in domestic courts or
international criminal courts if national courts are unwilling or unable to
prosecute. Similarly, IHRL violations can be enforced by national courts and
international mechanisms.
Differences:

IHL IHRL
Scope and Specifically applies to situations Applies at all times, in both
Application of armed conflict (both peace and war.
international and non-
international).
Nature of Obligations are primarily placed Obligations are mainly on states
Obligations on parties to the conflict, concerning the rights of
including states and non-state individuals within their
actors. jurisdiction.
Types of Focuses on the conduct of Covers a broad range of civil,
Protections hostilities and protection of political, economic, social, and
those affected by conflict. It cultural rights. It addresses
includes rules on the treatment issues such as freedom of
of prisoners of war, protection of expression, right to education,
civilians, and conduct of and right to a fair trial.
hostilities.
Specificity and Provides detailed rules on Offers broader and more
Detail conduct during conflict, such as general protections, although
the distinction between some treaties provide detailed
combatants and non- provisions (e.g., the Convention
combatants, proportionality, and Against Torture).
necessity.
Monitoring and Monitored by entities like theMonitored by various UN bodies
Enforcement International Committee of the(e.g., Human Rights Council,
Mechanisms Red Cross (ICRC).
treaty-based committees like
Enforcement can occur through the Human Rights Committee).
international criminal tribunals
Enforcement can occur through
(e.g., International Criminal international courts (e.g.,
Court). European Court of Human
Rights), and national courts.
Flexibility Contains norms that are non- Allows for certain derogations in
derogable and must be times of public emergency
observed in all circumstances threatening the life of the nation,
during conflicts. though core rights (e.g., right to
life, prohibition of torture) cannot
be derogated.