International legal context

• The title of the classical book by Hugo Grotius is:

De jure belli ac pacis or ‘Of the law of war and of the
law of peace’,
first published in 1625.

Lassa Francis Oppenheim’s

• International Law: A Treatise
Vol. 1: Peace
• International Law: A Treatise
Vol. II: War and Neutrality
 Terms
• Law of war

• Law of armed conflict (LOAC)

• International humanitarian law (IHL)

 Warfare traditions of the world (methods
and means of war)
• Do not set fire to what the
people have accumulated;
do not destroy their houses,
nor cut down the trees
at gravesites or altars…
-Jiang Ziya (Taigong),
Six Secret Teachings,
Ancient China,
11th century BC
 Warfare traditions of the world
(methods and means of war)
• The use of non-traditional
Greek infantry arms
(e.g. projectile missiles)
should be limited.
-Koina Nomina,
the ‘common customs’
of warfare, Ancient
Greece,
6th century BC
 Warfare traditions of the world
(methods and means of war)
• "When he fights with his
foes in battle, let him not
strike with weapons concealed
(in wood), nor with
(such as are) barbed,
poisoned, or the points
of which are blazing with fire."
-Code of Manu, Chapter VII,
verse 90 (around 2000 years ago,
Indian sub-continent)
 Warfare traditions of the world
(methods and means of war)
• Refrain from betrayal, extravagance, perfidy
or mutilation; never kill small children, old men
or women; never cut or set fire to palm trees;
never cut fruit-bearing trees; never slay a goat,
a cow or a camel except for food. If you pass
by people devoted to worship leave them to
do.
-Khalif Abu Bakr Al-Siddiq, the first caliph after the prophet Muhammed,
6-7th century
 Warfare traditions of the world
(methods and means of war)
• In no circumstances shall women and children
of the enemy be killed, even if they are used as
human shields by soldiers.
-Malik ibn Anas ibn Malik ibn ‘Amr al-Asbahim, distinguished scholar of
Islamic law, 8th century
 Warfare traditions of the world
(methods and means of war)
• If any Pakeha [non-Maori person]
being a soldier by
name shall be travelling
unarmed and meet me,
he will be captured
and handed over to
the direction of the law.
-Maori Warrior Code,
New Zealand, 1864
 Warfare traditions of the world
(methods and means of war)
• The ethics of war were
taught to every young
nobleman for his future
as a warrior. He was
taught never to kill an
enemy on the ground,
because by falling,
the enemy admitted
his inferiority.
-Senegal, oral tradition
 Armed conflicts

• 17 IACs and 38 NIACs took place in 2017.

Annyssa Bellal et al., “The war report: armed conflicts in 2017”,The Geneva Academy of International Humanitarian Law
and Human Rights, March 2018.
.
 Use of force and international law
• One of the first treaties that attempted to limit the right of
states to use force was the Covenant of the League of
Nations. In Articles 10–16, the Covenant required states to
exhaust a procedure aimed at the peaceful settlement of
disputes before resorting to war.
• The Covenant did not prohibit all recourses to use of force.
• A further step towards prohibition of war was taken in 1928
by the Kellogg-Briand or Paris Pact or General Treaty for the
Renunciation of War as an Instrument of National Policy
(adopted 27 August 1928, entered into force 24 June 1929)
• UN Charter
 IHL in international law
International
law

Rules Rules governing

governing the the conduct of International
legality of the hostilities (IHL) Human Rights
use of force (Jus in bello) Law (IHRL)
(Jus ad bellum)

United Nations Geneva Conventions, UDHR, ICCPR,

Charter Additional Protocols ICESCR and other
(Arts 2(4), 51 & 42) and other instruments instruments
 Sources of IHL
• a. international conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states;
• b. international custom, as evidence of a general
practice accepted as law;
• c. the general principles of law recognized by civilized
nations;
• d. judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
(Article 38 (1), ICJ Statute)
 IHL: What is it?
-It is a branch of international law that applies to
situations of armed conflict.

- It is a set of rules which seeks, for humanitarian

reasons, to limit the effects of armed conflict.
 Purposes of IHL
-reduce the unnecessary suffering, loss and
damage in time of armed conflicts

-safeguard the fundamental human rights and

dignity of persons

-facilitate the restoration of peace

 Protection
. In two ways

by protecting persons who do not by limiting the choice of means and

or no longer participate in hostile methods of conducting military
action operations

Geneva law The Hague law

 .

Fundamental principles of IHL

 Military necessity
Principle

- It is permissible to use those measures not forbidden by

international law which are necessary to secure the complete
submission of the enemy as soon as possible with the least
expenditure of personnel & resources.

- Recognises that use of force during armed conflict is legal,

within the limits set out by IHL.

- Further recognises that legitimate military targets can be

attacked/destroyed and enemy combatants killed, for
legitimate military purposes.
 Humanity
Principle :

- It is forbidden to inflict suffering, injury or destruction not actually

necessary to accomplish a legitimate military purpose.

- This is the very purpose of IHL and aims at protecting the victims
of armed conflict
 IHL strikes a balance

Military Humanity
necessity

IHL

The balance between military necessity and humanity is

achieved through the application of the principle of
Proportionality
 Proportionality
Principle :

Collateral damage shall be proportionate to the concrete and

direct military advantage anticipated.

- What is a collateral damage ?

Collateral damages are incidental loss of civilian life, injury to

civilians & damage to civilian objects.

- What is a military advantage ?

A military advantage is the total or partial destruction, capture

or neutralisation of a combatant or military objective
necessary for the ultimate submission of the enemy.
 .

Fundamental rules
 Limitation
Rule :

- The right of Parties to a conflict to choose

methods and means of warfare is not unlimited.

Dates back to the St Petersburg Declaration (1868)

Codified in modern IHL treaties (Article 35 of AP I)

 Distinction...
• IHL recognises two categories of persons in Armed
Conflicts:
– Combatants - Can be Attacked.

(Combatants have the right to participate directly in

hostilities)
– Civilians - Are Protected.

(Civilians have the general right to protection against

the effects of hostilities, but cannot participate in
hostilities)
 Distinction
Rule :

- Parties to a conflict shall at all times distinguish between :

. the civilian population and combatants

. military objectives and civilian objects

- Attacks shall be directed solely against combatants and military

objectives.
Distinction
Indiscriminate attacks are prohibited…

(AP I Art 52(2))

Indiscriminate attacks are prohibited…

(AP I Art 52(2))

 Precautionary measures
Rule :

- During military operations, all feasible precautions must be taken

to spare the civilian population and objects and protect them
against the dangers resulting from the effects of hostilities.

- Verify that objectives are legitimate military targets.

- Avoid locating military objectives within or near the civilian

population.

- Related to the principle of Distinction

 Superfluous injury and unnecessary suffering

Rule :

- The use of weapons, materials and methods of warfare of a nature

to cause superfluous injury or unnecessary suffering is prohibited.

- (Related) It is prohibited to use methods & means of warfare which

are intended (or may be expected) to cause widespread, long-term
and severe damage to the natural environment.
Victims of armed conflict
Civilians

Victims
of armed
conflict
Wounded, Persons
sick and deprived
shipwrecked
of liberty
 Historical development of IHL

-Traditional rules of war

-Rules became more authoritative with the rise of

centralised power and States

-Over time, the traditional rules became formal law

-In 1864 (First Geneva Convention), for the first time, a

multilateral treaty provided for the protection of persons
in wartime.
 the Lieber Code

• In 1861 Francis Lieber (1800-1872), a

German-American professor of political science and
law at Columbia University, prepared on behalf of
President Lincoln a manual based on international
law (the Lieber Code) which was put into effect for
the first time in 1863 for the Union Army of the
United States in the American Civil War (1861-1865).
 Henry Dunant and two ideas
• The Genevese merchant Henry Dunant who, in the Italian
War of Unification, had witnessed the plight of 40,000
Austrian, French, and Italian soldiers wounded on the
battlefield of Solferino (1859), published his impressions in
his book 'A Memory of Solferino'.
Two ideas
• To create an organization of trained volunteers ready to
assist wounded in war in every country. (Led to the
establishment of the ICRC, 1863)
• To promote an international agreement protecting
wounded soldiers in war and those who care for them (led
to the adoption of the Geneva Convention of 1864)
 Select Landmarks in the Development of
IHL
• 1864: First Geneva Convention (Wounded on the
battlefield
• 1868: St Petersburg Declaration - outlawing of certain
projectiles
• 1899/1907: Hague Conferences
• 1906: Second Geneva Convention (Wounded and sick
in armies)
• 1925: Geneva Gas Protocol
• 1929: Third Geneva Convention (Prisoners of War)
 Select Landmarks in the Development of
IHL (WWII to Present)
• 1949: Four Geneva Conventions
• 1954: Hague Cultural Property Convention
• 1972: Biological Weapons Convention
• 1977: First and Second Additional Protocols
• 1980: Conventional Weapons Convention
• 1993: Chemical Weapons Convention
• 1997: Anti-personnel Landmines Ban
• 1998: International Criminal Court
• 2000: Optional Protocol Child Soldiers
• 2005: Customary Law Study
• 2008: Cluster Munitions Convention
• 2017: Treaty on the Prohibition of Nuclear Weapons
 Treaty clusters

• Protection: GCs and APs, Hague Cultural

Property, Child Soldiers
• Weapons: BW+GGP, CW, CCW+5P, CCM,
ENMOD, Ottawa
• Customary Law
• Enforcement: ICC
• Other related: Genocide, Torture, Enforced
Disappearances
 Two main branches of jus in bello
-Geneva Law

•humanitarian law proper, which is designed to safeguard

military personnel who are not or are no longer taking part
in the fighting and persons not actively involved in
hostilities

-Hague Law

•the law of war, which establishes the rights and obligations

of belligerents in the conduct of military operations and
limits the means of harming the enemy
 Four Geneva Conventions of 1949
• Geneva Convention I for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in
the Field (GC I);
• - Geneva Convention II for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (GC II);
• - Geneva Convention III Concerning the Treatment of
Prisoners of War (GC III);
• - Geneva Convention IV Concerning the Protection of
Civilian Persons in Times of armed conflict (GC IV).
 Three Additional Protocols
The three Protocols Additional to the Geneva Conventions are
designed to reaffirm and develop the rules embodied in the laws
of Geneva of 1949 and part of the laws of the Hague of 1907

• Protocol of 8 June 1977 Additional to the Geneva Conventions of

12 August 1949, and Concerning the Protection of victims of
International Armed Conflicts (AP I);

• Protocol of 8 June 1977 Additional to the Geneva Conventions of

12 August 1949, and Concerning the Protection of victims of
Non-International Armed Conflicts (AP II); and

• Protocol of 8 December 2005 Additional to the Geneva

Conventions of 12 August 1949, Relating to the Adoption of an
Additional Distinctive Emblem (AP III).
 Martens clause…
As formulated in 1899, the Martens clause read:

• Until a more complete code of the laws of war is

issued, the High Contracting Parties think it right
to declare that in cases not included in the
Regulations adopted by them, populations and
belligerents remain under the protection and
empire of the principles of international law, as
they result from the usages established between
civilized nations, from the laws of humanity, and
the requirements of the public conscience.
 Martens clause
• The Martens clause, in the Preamble to the Hague
Conventions on the Laws and Customs of War on Land, is an
important legacy of those instruments. In the years since its
formulation, the Martens clause has been relied upon in the
Nuremberg jurisprudence, addressed by the International
Court of justice and human rights bodies, and reiterated in
many humanitarian law treaties that regulate the means
and methods of warfare.

• It was restated in the 1949 Geneva Conventions for the

Protection of Victims of War, the 1977Additional Protocols
to those Conventions,' and the Preamble to the Convention
on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons, in slightly different versions.
 Summary
• Terminology
• Religious and cultural traditions
• Legal context (jus ad bellum and jus in bello)
• Purpose is protection of victims of armed conflict
• Fundamental principles
• Fundamental rules
• Existing treaty law
• Geneva Law and Hague Law
• Martens clause