International Humanitarian Law

1. HUMAN RIGHTS AND HUMANITARIAN
LAW
DR KASIM BALARABE
PROFESSOR & ASSOCIATE DEAN
LLB (ABU), BL (ABUJA), LLM (GENEVA), LLM (VU AMSTERDAM), PHD (MAASTRICHT)
BARRISTER & SOLICITOR OF THE SUPREME COURT OF NIGERIA
WEEK 1

2. CONTENT OF THE PRESENTATION
GENERAL INTRODUCTION TO INTERNATIONAL
HUMANITARIAN LAW (IHL)
• Philosophy of IHL
• Fundamental principles of IHL
• Limits inherent in IHL
• Possibility of legal regulation of warfare

3. PHILOSOPHY OF INTERNATIONAL HUMANITARIAN LAW
• IHL is a branch of international law limiting the use of violence in armed
conflict by:
1. Sparing those who do not or no longer directly participate in hostilities;
2. Limiting the violence to the amount necessary to achieve the aim of the
conflict:
• this can be independently of the causes fought for
• only to weaken the military potential of the enemy.

4. FUNDAMENTAL PRINCIPLES OF IHL
1. Principle of Distinction
2. The prohibition to attack those hors de combat
3. The prohibition to inflict unnecessary suffering
4. Principle of Necessity
5. Principle of Proportionality
6. Principle of Precaution
7. Principle of humanity

5. FUNDAMENTAL PRINCIPLES OF IHL
1. Principle of Distinction
• The principle of distinction under IHL is that only combatants may
be directly targeted.
• This is to protect civilians in armed conflict.
• Without the principle of distinction, there would be no limitation on
the methods of warfare.
• The specific rules where the principle of distinction is set out are
articles 48 and 52 of AP 1.
• The above define those that can be lawfully attacked.
• Combatants
• Military objectives
• Any direct attack against a civilian or civilian object is a violation of
IHL:
• Grave breach; and
• War crime
• Also, any weapon which is incapable of distinguishing is also
prohibited.
• The principle is also a rule of customary international law (CIL),
binding on all States.

6. FUNDAMENTAL PRINCIPLES OF IHL
2. The Prohibition to Attack those Hors de Combat
• These are combatants who are sick, wounded, surrendered,
captured, shipwrecked, POWs, etc.
• This is a fundamental rule under IHL.
• a solider could be targeted lawfully under normal circumstances, but
if that soldiers surrenders or is wounded and no longer poses a
threat, then it is prohibited to attack that person.
• Additionally, they may be entitled to extensive protections if they
meet the criteria of Prisoners of War.

7. FUNDAMENTAL PRINCIPLES OF IHL
3. The Prohibition on the Infliction of Unnecessary
Suffering
• IHL permits violence, but it prohibits the infliction of unnecessary
suffering and superfluous injury.
• Even combatants who may be lawfully attacked, are provided
protection by this prohibition.
• One rule that has been established based on this principle is the
prohibition on the use of blinding laser weapons.

8. FUNDAMENTAL PRINCIPLES OF IHL
4. Principle of (Military) Necessity
• Military necessity permits armed forces to engage in conduct that
will result in destruction and harm being inflicted.
• Military necessity acknowledges that under IHL, winning the war is
a legitimate consideration.
• However, the principle does not give the armed forces the freedom
to ignore humanitarian considerations altogether.
• It must be interpreted in the context of specific prohibitions and in
accordance with the other principles of IHL.
• It is important to note that the notion itself is to be found within the
rules of IHL.
• For example, Art. 52 of AP I list objects that can be attacked.
• The notion cannot be applied to override specific protections or
create exceptions where the text does not provide for one.
• The US military tribunal in the Krupp case stated:
• [T]o claim that [the laws of war] can be wantonly – at the sole discretion of any
one belligerent – disregarded when he considers his own situation to be critical,
means nothing more or less than to abrogate the laws and customs of war.

9. FUNDAMENTAL PRINCIPLES OF IHL
5. Principle of Proportionality
• This principle limits and protects potential harm to civilians.
• It demands that the least amount of harm is caused to civilians.
• That when harm to civilians must occur it needs be proportional to
the military advantage.
• See article 51(5) (b) of AP I on the conduct of hostilities.
• Attack is prohibited when the civilian harm would be excessive in
relation to the military advantage sought.
• This is where we often hear the term ‘collateral damage’.
• The notion cannot be applied to override specific protections or
create exceptions where the text does not provide for one.
• direct attacks against civilians are prohibited and hence a
proportionality assessment is not a relevant legal assessment
• Proportionality only applies when a strike is made against a lawful
military target.

10. FUNDAMENTAL PRINCIPLES OF IHL
6. Principle of Precaution
• During hostilities the parties to an armed conflict are obliged to respect the
rules on precautions in attack.
• This supplements the general obligation to distinguish, at all times, between:
• civilians and combatants; and
• civilian and military objectives
• This also interlinks with rules on proportionality.
• The principle is intended to guarantee that the parties will never disregard the
presence of civilians.
• It obligated taking of steps to minimise the harm caused to innocent civilians.
• This obligation is placed on both the attacker and the defender.
• the attacker must consider the presence of civilians prior to any attack and make
adjustments as necessary and feasible.
• the attacked must take feasible steps to minimise the anticipated harm towards its
own civilians.
• These requirements are rooted legal provisions that whenever civilians are
present, parties to an armed conflict must:
i. take precautions during military operations to spare the civilian population
and civilian objects (Art. 57 of AP I);
ii. take precautions to protect the civilian population and civilian objects
under their own control against the effects of military attacks (Art. 58 AP I).

11. FUNDAMENTAL PRINCIPLES OF IHL
Specific Measures of Precaution to be taken
• IHL outlines a set of precautionary measures that the parties are obliged to take during armed conflict.
1. Location of military objects:
• A party has a duty, as much as possible, to separate military objectives from the civilians located under its
own control.
• The party should, for example, avoid locating military objectives near densely populated areas.
• It should also as much as possible, remove civilians, and civilian objects, from the areas of military
objectives.
2. Choosing weapons and methods of warfare:
• Parties must verify that targets are indeed military targets.
• When several targets serve the same military purpose, attack should be limited to that expected to cause
the least danger to civilians and their property.
• Military operations must be cancelled or suspended if it turns out that the target is not a military target.
• It must also be cancelled if it is expected that harm to civilians is excessive in relation to the military
advantage anticipated.
• Close attention should be given to the verification of the targets and the scope of casualties at all times.

12. FUNDAMENTAL PRINCIPLES OF IHL
• The parties to the conflict cannot rely exclusively on previous estimations regarding possible harm to
civilians:
• They must take consider any changes of circumstances on the ground. Information about the existence of civilians is always
relevant and should be confirmed prior to every attack.
3. Warnings:
• The parties to armed conflict must, as much as possible, give effective warnings to civilians before an
attack.
• Warnings increase the opportunities for civilians to protect themselves from any possible harm caused by
attacks.
• However, warnings cannot be misused as justification to target civilians who chose to stay in the
battlefield for any reason.
• The effectiveness of the warning is crucial for the legality of military operations.
• The attacker bears the burden of proof that the method used to distribute and disseminate the warnings
was indeed effective.

13. FUNDAMENTAL PRINCIPLES OF IHL
7. Principle of Humanity
• This was the central notion that inspired the founder of the ICRC,
Henry Dunant during the battle of Solferino of 1859.
• It stipulates that all humans have the capacity and ability to show
respect and care for all, even to their sworn enemies.
• The notion of humanity is central to the human condition and
separates humans from animals.
• This demonstrates that even during armed conflict there is some
common sense of and respect for humanity.
• Modern IHL is not naive and accepts that harm, destruction and death
can be lawful during armed conflict.
• IHL simply looks to limit the harm, and the principle of humanity is very much at
the heart of this ambition.
• Many rules of IHL are inspired by this notion, specifically those
setting out protections for the wounded and sick.
• This principle is expressed in common article 3, articles
12/12/13/27 of GCs and article 4 of Additional Protocol II.

14. INHERENT LIMITS OF IHL
1. Does not prohibit the use of violence
2. It cannot protect all those affected by an armed conflict
3. It cannot distinguish according to the purpose of the conflict
4. It cannot prohibit a party to overcome the enemy
5. It presupposes that parties to an armed conflict have rationale aims

15. POSSIBILITY OF LEGAL REGULATION OF WARFARE
Questions on the role of IHL:
• All internal laws prohibit internal armed conflicts
• International law has outlawed international armed conflicts.
• So what is the role of IHL?
• Will legal consideration be able to restrict human behaviors?
• BUT armed conflicts are a REALITY
• So we need a minimum of regularly respected rules – IHL
• It prescribes when armed violence may be used and how it may be used