International humanitarian law

International
Humanitarian Law
RECENT DEVELOPMENTS
AND CURRENT CHALLENGES
Richard Desgagné
Regional Legal Adviser
ICRC (Kuala Lumpur)

New realities and challenges
 Changes in the nature of armed conflicts
 mostly non international armed conflicts
 increasingly economic in nature
 competition for access to critical energy resources
 tribal / ethnic / religious dimensions
 coexistence of political / non political actors
 Coexistence of and overlapping of several factors:
multiple and multiplied impact on civilians
 Non international armed conflicts: highly complex with
multiple actors
 Confrontations on global scale ("acts of terrorism" /
"counter terrorism")

New realities and challenges
 Qualification of situations of violence
 Development, respect and application of the
law
 Participation of civilians in hostilities
 Weapons and methods of warfare

Qualification of situations of
violence

Non international armed conflicts
Other situations of violence
International armed conflicts
 Geneva Conventions I, II, III & IV
 Additional Protocol I
 Customary IHL
 Principles of humanity (Martens Clause)
 Common Article 3
 Additional Protocol II
 Customary IHL
 Principles of humanity
 International Human Rights Law
 Customary law
 Elementary considerations of
humanity
IHL

 Customary IHL
 Customary IHL
 Customary law
humanity
How do
we define
an "armed
conflict"?

 Customary IHL
 Customary IHL
 Customary law
humanity
When is a conflict
"internationalized"

"Other situations of violence"
" … shall not apply to situations of
internal disturbances and tensions,
such as riots, isolated and sporadic
acts of violence and other acts of a
similar nature, as not being armed
conflicts."
Article 1 (2), AP II

"Armed conflicts"
"we find that an armed conflict exists
whenever there is a resort to armed force
between States or protracted armed
violence between governmental
authorities and organized armed groups
or between such groups within a State."
Tadić (Jurisdiction), ICTY, 1995
armed force / protracted armed violence
organised military forces

ViolenceOrganised forces
IAC
threshold
NIAC
threshold

 " … all cases of declared war or of any
other armed conflict which may arise
between two or more [States], even if the
state of war is not recognized by one of
them."
A B
AF AF
Common Article 2

 "all cases of partial or total occupation
of the territory of a High Contracting
Party, even if the said occupation meets
with no armed resistance."
Common Article 2
A B
AF AF

A B
AF AF
A B
AF AF
A "People"
AF NLF

"Wars of national liberation"
 " … armed conflicts in which peoples are
fighting against colonial domination and
alien occupation and against racist
régimes in the exercise of their right of
self-determination, …
Article 1 (4), AP I
 … as enshrined in the Charter of the United
Nations and the Declaration on Principles of
International Law concerning Friendly Relations
and Co-operation among States in accordance
with the Charter of the United Nations.

ViolenceOrganised forces
NIAC
threshold

 armed conflict
 not of an international character
 occurring in the territory of a High
Contracting Party
Common Article 3
A
AF AG

"organized military force"
Indicative factors:
 the existence of a command structure and disciplinary
rules and mechanisms within the group
 the ability of the group to gain access to weapons,
other military equipment, recruits and military training
 its ability to plan, coordinate and carry out military
operations, including troop movements and logistics
 its ability to define a unified military strategy and use
military tactics;
 its ability to speak with one voice and negotiate and
conclude agreements
 …
Non International Armed Conflicts

"protracted armed violence"
(intensity / duration)
Indicative factors:
 the number, duration and intensity of individual
confrontations
 the type of weapons and other military equipment
used
 the number of persons and type of forces taking part
in the fighting
 the number of casualties
 the extent of material destruction
 the number of civilians fleeing combat zones
 …
Non International Armed Conflicts

Intervention of a third State
 Effect on the classification (and applicable law) of the
intervention of a third State in a non-international
armed conflict?
 Responsibility under international law of the
intervening State to be engaged?
 Is the third State a party to the conflict?
"Internationalized" Armed Conflicts

Nicaragua v. USA (ICJ, 1986)
 Issue: responsibility of US for acts committed by the
Contras (Law of State responsibility)
 It should be established in principle that [the USA] had
an effective control on the military or paramilitary
operations when the violations did occur.
 "had specifically ordered or imposed" the commission
of the acts.

Tadić (ICTY, 1999)
 Issue: Were the victims "protected persons" under
the GCs? (Qualification of conflict)
 Distinction between:
 isolated individual or group which is not military
organized
 armed forces, militias or paramilitary units
 "overall control": play a role on the organization,
coordination or planning of military operations

Bosnia & H. v. Serbia & M. (ICJ, 2007)
 Issue: responsibility of FRY for acts committed by the
Republika Spreska
 “overall control” test for classification of the conflict:
"it may well be that the test is applicable and suitable;
the Court does not however think it appropriate to
take a position on the point in the present case, …"
 “overall control” test for the purpose of determining
when a State is responsible for acts committed by
paramilitary units, armed forces which are not among
its official organs: argument in favour of that test is
unpersuasive.

A
AF AG
B C
AF
Mixed" / "Internationalized" Armed Conflicts

A
AF AG
C
AF
IAC
"Mixed" / "Internationalized" Armed Conflicts

 provide financial support, military
equipment, or training
 ICTY: "overall control" test: play a
role on the organization, coordination
or planning of military operations
 ICJ: "effective control" test: give
specific instructions or directives
"internationalization"

A
AF AG
C
AF
IACNIAC
Mixed" / "Internationalized" Armed Conflicts

"Authoritative" qualification of
situations of violence
 States (or State) involved in the conflict?
 Third States?
 UN Security Council?
 UN General Assembly?
 International Court of Justice?
 International Criminal Tribunals?
 ICRC?
 Others?

Development, respect and
application of the law

 Wounded and Sick
(Land)
 Wounded, Sick and
Shipwrecked (Sea)
 Prisoners of War
 Civilian Persons in the
Power of the enemy
Geneva Conventions of 1949

THE MAIN GAPS …
 new means & methods
of warfare (WW I & WW
II)
 conduct of hostilities
 protection of civilian
population from the
effects of hostilities
 internal conflicts
Geneva Conventions of 1949

International Armed
Conflicts
Non International
Armed Conflicts
Additional Protocols of 1977

 Geneva Conventions : 194 States Parties
 Additional Protocol I: 170 States Parties
 Additional Protocol II: 165 States Parties
 Additional Protocol III: 53 States Parties

 1864 – Geneva Convention (sick and wounded soldiers)
 1868 – Declaration of Saint-Petersburg (certain ammunition)
 1899/1907 – The Hague Conventions (laws & customs of war)
 1925 – Protocol for the Prohibition of the Use of Asphyxiating Gases
 1929 – Geneva Convention (prisoners of war)
 1949 – Four Geneva Conventions
 1954 – Hague Convention on the Protection of Cultural Property (and
Protocol)
 1972 – Biological Weapons Convention
 1977 – Two Additional Protocols to the GC
 1980 – Conventional Weapons Convention (and Protocols)
 1993 – Chemical Weapons Convention
 1997 – Ottawa Treaty on Anti-personnel landmines
 1998 – Statute of the International Criminal Court
 1999 – Second Protocol to the Hague Convention of 1954
 2000 – Optional Protocol on the Involvement of Children in Armed
Conflict
 2008 – Convention on Cluster Munitions

East and
Southeast Asia
Fundamental Treaties Other related treaties
Country
HagueConvention(IV)
(1907)
GenevaConventions(I-
IV)(1949)
AdditionalProtocolI
(1977)
AdditionalProtocolII
(1977)
AdditionalProtocolIII
(2005)
TheHagueCultural
PropertyConvention
(1954)
(First)Protocol(1954)
SecondProtocol(1999)
RomeStatuteoftheICC
(1998)
GenocideConvention
(1948)
Non-Applicabilityof
StatutoryLimitations
(1968)
CRC-CAC(2000)
Brunei Darussalam 1991 1991 1991
Cambodia 1958 1998 1998 1962 1962 (s) 2002 1950 2004
China 1917 1956 1983 1983 2000 2000 1983 2008
Indonesia 1958 1967 1967 (s) (s)
Japan 1911 1953 2004 2004 2007 2007 2007 2007 2004
Korea (Dem.People's Rep.) 1957 1988 1989 1984
Korea (Republic of) 1966 1982 1982 (s) 2002 1950 2004
Lao People's Dem. Rep. 1956 1980 1980 1950 1984 2006
Malaysia 1962 1960 1960 1994
Mongolia 1958 1995 1995 1964 (s) 2002 1967 1969 2004
Myanmar 1992 1956 1956 1956
Philippines 1952 (s) 1986 2006 (s) 1950 1973 2003
Singapore 1973 2008 1995 2008
Thailand 1910 1954 1958 1958 (s) 2006
Timor-Leste 2003 2005 2005 (s) 2002 2004
Viet Nam 1957 1981 1981 1983 2001
Selected neighbouring States
Australia 1958 1991 1991 2009 1984 2002 1949 2006
India 1950 1958 1958 1959 1971 2005
Russian Federation 1909 1954 1989 1989 (s) 1957 1957 (s) 1954 1969 2008
1909 1955 (s) (s) 2007 2009 (s) 1988 2002
Total
World 35 194 170 165 52 123 100 56 111 140 51 132
United States of America

East and
Southeast Asia
Use of weapons
Country
GenevaGasProtocol
(1925)
BiologicalWeapons
Convention(1972)
ENMODConvention
(1976)
ConventionalWeapons
Convention(1980)
AmendmentofArticle1
(2001)
ProtocolIonnon
detectablefragments
(1980)
ProtocolIIonlandmines
andboobytraps(1980)
ProtocolIIonlandmines
andboobytraps(amd)
(1996)
ProtocolIIIonincendiary
weapons(1980)
ProtocolIVonblinding
laserweapons(1995)
ProtocolVonexplosive
remnantsofwar(2003)
ChemicalWeapons
Convention(1993)
OttawaAntipersonnel
LandminesTreaty(1997)
ClusterMunitions
Convention(2008)
Brunei Darussalam 1991 1997 2006
Cambodia 1983 1983 1997 1997 1997 1997 1997 1997 2005 1999
China 1952 1984 2005 1982 2003 1982 1982 1998 1982 1998 2010 1997
Indonesia 1971 1992 1998 2007 (s)
Japan 1970 1982 1982 1982 2003 1982 1982 1997 1982 1997 1995 1998 2009
Korea (Dem.People's Rep.) 1989 1987 1984
Korea (Republic of) 1989 1987 1986 2001 2003 2001 2001 2008 1997
Lao People's Dem. Rep. 1989 1973 1978 1983 1983 1983 1983 1997 2009
Malaysia 1970 1991 2000 1999
Mongolia 1968 1972 1978 1982 1982 1982 1982 1999 1995
Myanmar (s)
Philippines 1973 1973 1996 1996 1996 1997 1996 1997 1996 2000 (s)
Singapore 1975 1997
Thailand 1931 1975 2002 1998
Timor-Leste 2002 2003 2003
Viet Nam 1980 1980 1980 (s) 1998
Selected neighbouring States
Australia 1930 1977 1984 1983 2002 1983 1983 1997 1983 1997 2007 1994 1999 (s)
India 1930 1974 1978 1984 2005 1984 1984 1999 1984 1999 2005 1996
Russian Federation 1928 1975 1978 1982 2007 1982 1982 2005 1982 1999 2008 1997
1975 1975 1980 1995 2009 1995 1995 1999 2009 2009 2009 1997
Total
World 136 163 73 111 72 109 92 93 105 95 67 188 156 36
United States of America

International
Armed Conflicts
(relations between
States)
Non International
Armed Conflicts
(relations between States
and their nationals)
International Obligations State Sovereignty
500 articles 29 articles

Customary International Humanitarian Law
161 rules identified:
 13 only applicable in international
armed conflicts (IAC)
 2 only applicable in non international
armed conflicts (NIAC)
 3 have different formulations in IAC
and NIAC
 146 rules applicable in both NIAC and
NIAC

Customary International Humanitarian Law
 generally formulated
 diverging interpretations (direct
participation in hostilities, military
objectives, proportionality, …)
 application to non-state actors (NIAC)
 remaining gaps

International humanitarian law
& human rights law
• freedom of association
• freedom of the press
• freedom of conscience
• …
IHLHRL
 Economic, social
& cultural rights
 Civil & Political Rights
• right to education
• right to work
• right family life
 regulation of
means and methods
of warfare
 providing
humanitarian relief
 protection and
care of the wounded
& sick
 protection of civilians
for the effect of
hostilities
right to life
prohibition of torture
& ill-treatment
non-discrimination
respect of judicial
guarantees
…

Strengthening legal protection for victims of
armed conflicts
Study on the current state of international
humanitarian law (2008-2010)
 Protection of persons deprived of liberty (especially in
non international armed conflicts)
 conditions of detention
 procedural safeguards
 Implementation and reparations for victims of
violations
 supervision mechanisms
 forms of reparations
 Protection of the natural environment
 Protection of internally displaced persons

Participation of civilians in
hostilities

The Parties to the conflict shall at all times
distinguish between the civilian population and
combatants and between civilian objects and
military objectives
 accordingly they shall direct their
operations only against military objectives.

Who is a "civilian"?
 Any person who is not a
member of the "armed
forces"/"fighting forces"
of a Party to the conflict
("combatant/fighter")

What are the "armed forces"/ "fighting
forces"?
 All organized armed
forces, groups and
units which are
under a command
responsible to a
Party for the conduct
of its subordinates

 members of regular
armed forces
 members of irregular
armed forces (militias
and other volunteer
corps) of a Party
 …
 members of dissident
armed forces or
organized armed groups
 who assume a
continuous function
that involves direct
participation in
hostilities
("continuous combat function")
State Party Non-State Party

"Armed forces/fighting forces"
and "civilians"
"State armed forces"
"fighting forces"
"party to conflict"
"party to conflict"
civilians
civilians
civilians
civilians
civilians
civilians

Organized fighting forces
belonging to the Parties
to an armed conflict
Civilians
Armed Forces
- medical & religious personnel
- personnel hors de combat
Persons NOT PROTECTED
against direct attack
Persons PROTECTED
against direct attack
Principle of Distinction
Military Necessity Humanity
Civilians directly
participating in hostilities

Civilians: Loss of protection
 "Civilians shall enjoy the protection
afforded by [IHL], unless and for such
time as they take a direct part in
hostilities."
What is "direct participation"?
How long is "for such time"?

"Direct participation in hostilities"
Concept becomes central
 more involvement of civilians in hostilities
(especially in NIAC)
 use of high-tech warfare (including computer
network attack)
 privatization of the armed forces
 "fight against terrorism"

 attacking enemy
 capturing equipment
 laying mines
 sabotaging
 collecting tactical
intelligence on the
battlefield  support to the "war
effort"
 care and feeding of
troops
 ammunition/weapons
factory workers
Direct participation in hostilities?

 political leaders
 maintenance of
aircraft
 collecting
intelligence
 operating drones
 providing security
services
 voluntary human
shields
 …
Direct participation in hostilities?

Direct participation in hostilities:
Elements
 to adversely affect the military operations or military capacity of a
party to the conflict or,
 to inflict death, injury or destruction on persons or objects
protected against direct attack.
1. Threshold of harm
 act designed to directly cause the harm; or
 part of a concrete and coordinated military operation of which that
act constitutes an integral part.
2. Direct causation
 The act must be designed to directly cause the required threshold
of harm in support of a party to the conflict and to the detriment
of another.
3. Belligerent nexus

Beginning and end of a hostile act
A specific act amounting to “direct
participation in hostilities” includes:
 concrete preparatory measures
 deployment to the location of its execution
 return from the location of its execution

 Civilians lose protection against direct attack
for the duration of each specific act
amounting to direct participation in
hostilities.
 Civilians
 Members of organized armed forces or
groups of a party to the conflict lose civilian
protection for the duration of their
membership.
 Members of organized armed forces or groups
Duration of loss of protection from attack

Precautions and presumption in doubt
 All feasible precautions must be taken in
determining whether:
 a person is a civilian
 a civilian is directly participating in hostilities
 In case of doubt, persons are presumed to be
protected against direct attack

Restraints on lethal force
in direct attack
 The means and methods, as well as kind and
degree of force used against persons not
entitled to protection against direct attack:
 must not exceed what is actually necessary to
accomplish a legitimate military purpose in the
concrete circumstances, and
 must not otherwise be prohibited by IHL or other
branches of international law.

Consequences of
regaining "civilian protection"
 Civilians who have ceased to directly participate
in hostilities
 Members of organized armed groups who have
disengaged from their combat function
 may no longer be directly attacked but
 remain subject to arrest and prosecution under
domestic law
 DPH is not prohibited by IHL as such

Weapons and methods
of warfare

Basic principles of the conduct of
hostilities
 Military necessity
 Principle of distinction
 Principle of proportionality
 Duty to take precautions
 Prohibition of causing
unnecessary suffering and
superfluous injury

Regulation of specific weapons
 exploding bullets
 expanding bullets
 poison
 chemical weapons
 biological weapons
 non-detectable
fragments
 blinding laser weapons
 cluster munitions
 mines, booby traps
and other similar
explosives devices
 incendiary weapons

Convention on Certain Conventional
Weapons (1980/2001)
 weapons which injure by fragments
escape detection by X-rays (1980)
 laser weapons specifically designed to
cause permanent blindness (1995)

Convention on Certain Conventional
Weapons (1980/2001)
 incendiary weapons (1980)
 anti-vehicles mines, booby-
traps and similar explosive
devices (1980/1996)

Anti-personnel landmines:
Ottawa Treaty (1997)
 use
 development
 production
 transfer
 destruction of stockpiles (4 y.)
 mine clearance (10 y.)

 severe and reoccurring humanitarian
problems caused by the use of these
weapons
 negotiated by 107 States with 33 States and
organizations participating as observers
 significant input and expertise from civil
society
 entry into force on 1st August 2010

 use
 development
 production
 transfer
 destruction of stockpiles (8 y.)
 mine clearance (10 y.)

"a conventional munition that is designed to
disperse or release explosive submunitions each
weighing less than 20 kilograms, and includes
those explosive submunitions"
excludes munitions with fewer than 10
submunitions, if each is:
 designed to engage and detect a "single
target object";
 equipped with electronic self-destruction
and deactivation feature;
 more than 4 kg.

Protection from and prevention of the
consequences of the use of weapons
 marking and
clearance, removal or
destruction of
explosive remnants
of war in affected
territories
 legal review of new
weapons
 controlling the
availability of
weapons
 regulating arms
transfers
• prohibited weapons
• non State actors
• trade in weapons

Protocol V on Explosive Remnants of War
(2003)
 Responsibility of each
State and party to an
armed conflict with
respect to all explosive
remnants of war in the
territory under its
control
 Marking and clearance, removal or
destruction of explosive remnants of war in
affected territories under parties' control

Protocol V on Explosive Remnants of War
(2003)
 Clear ERW in territory it controls after the
end of active hostilities.
 Provide assistance to facilitate the
removal of ERW resulting from its
operations in areas it does not control.
 Take all feasible precautions to protect
civilians from the effects of ERW.
 Record and share information with
organizations involved in mine /ERW
action.

Legal review of new weapons
 In the study, development, acquisition or
adoption of a new weapon, means or
method of warfare, [a State] is under an
obligation to determine whether its
employment would, in some or all
circumstances, be prohibited by … any
rule of international law applicable to the
[concerned State].

Availability of small arms & light weapons
(ICRC Study, 1999)
 Humanitarian
consequences of the wide
availability of small arms &
light weapons
 increasing level of
violence, in particular in
non-international armed
conflicts
 increased likelihood of
violations of IHL
 hampers delivery of
assistance to victims of
armed conflict
 States should better
control the circulation
and availability of
such weapons on
their territory

Arms Trade Treaty (ATT)
... in the making
PrepCom Chairman's
Goals and Objectives
"Prevent international transfers of conventional arms
that contribute to or facilitate: human suffering, serious
violations of international human rights law and
international humanitarian law, violations of UN
sanctions and arms embargoes and other international
obligations, armed conflict, the displacement of people,
organized crime, terrorist acts, and thereby undermining
peace, reconciliation, safety, security, and sustainable
social and economic development."

... in the making
 to include an obligation
 to assess the recipient’s likely respect for
international humanitarian law, and
 not transfer arms or ammunition if there is a clear
risk that the arms or ammunition will be used to
commit serious violations of IHL.
and …
 not to transfer specific weapons or ammunition the
use or transfer of which has been prohibited, and
 not to transfer weapons or ammunition that are of a
nature to cause superfluous injury or unnecessary
suffering or that are by nature indiscriminate.

... in the making
 criteria relating to the transferring State's
express international obligations
 criteria relating to likely post-transfer events
and effects
 relating to likely use
 relating to likely effects
 considerations relating to the needs and
practices of the countries involved in the
transfer

... in the making
 Defines “clear risk”
and “serious
violations”
 Proposes indicators
for rigorous risk
assessments

... in the making
Assessing the risk that arms will be used
to commit serious violations requires
examining:
 the recipient’s record of respect for IHL
 the recipient's formal commitments
 the recipient's capacity to ensure that the arms or
equipment transferred are used in a manner
consistent with IHL and are not diverted or
transferred to other destinations where they might
be used to commit serious violations

International humanitarian law

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to International humanitarian law

Similar to International humanitarian law (20)

More from Adi Kuntarto

More from Adi Kuntarto (20)

Recently uploaded

Recently uploaded (20)

International humanitarian law