1. International Humanitarian Law
1.0 The Nature of International Humanitarian Law
1.1 The sources
Customary International Law
Reliance on the CIL – applies where one or more of the states involved In the
conflict is not a party to a convention
Eg ; Award of the Eritrea-Ethiopia Claims Commission ; decided that Eritrea was
not a party to the four Geneva Convention of 1949 – the applicable law for the
relevant claim is CIL
Marten’s clause – authority for the relevance customary international law
Treaty Law
The Hague Law ; primarily deals with restrictions of means and methods of warfare
(conduct of hostilities)
Adopted at the Hague Conference of 1899 and 1907 – cover a wide range of
areas ; conduct of hostilities on land, air, sea
International Military Tribunal at Nuremberg held that Hague Convention IV
1907 has acquired the status of customary international law
The Geneva Convention ; deals with the protection of victims of armed conflict
The four Geneva Conventions for the Protection of War Victims 1949 ; Second World
War caused brutality against civilians and non combatants – resulted in the adoption of
the four Geneva Conventions
Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field
Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick and Shipwrecked Members of Armed Forces at Sea
Geneva Convention relative to the Treatment of Prisoners of War
Geneva Convention relative to the Protection of Civilian Persons in Time of War
The Two Additional Protocols 1977 – more specific provisions are needed in dealing
with a more complex situations of armed conflicts – resulted with the adoption of
additional protocols
Protocol Additional to GC 1949 and relating to the Protection of Victims of
International Armed Conflict

2. Protocol Additional to GC 1949 and relating to the Protection of Victims of Non
International Armed Conflicts
1.2 International and Non International Armed Conflict
IHL refers to two different types of armed conflict
1) International Armed Conflict ; Inter state armed conflict
Common Article 2 of the GC 1949 generally agreed that – international
armed conflict exist where force is directed by one state against another
To include
o Occupation of territory – Second Part of Article 2 of 1949 GC – The
convention shall apply to all cases of partial or total occupation of the
territory of contracting party
o Internationalized armed conflict - an armed conflict confined geographically
to the territory of a single state (a non international one) can be
transformed into an international armed conflict – if a state/s military
intervenes directly/indirectly
o National liberation movement – Additional Protocol I (Article 1 (4)) extend
the definition of international armed conflict to include national liberation
movement
2) Non international armed conflict (internal)
In the case of internal one – force used within state’s own territory against
its own citizen – enforcement action against criminal , operation to quell
riots or civil disturbance
Tadic case ; sole requirement for the existence of internal armed conflict is a
state of protracted armed violence, involving organized non governmental
armed groups – no requirement that the insurgent exercise control - must
have reached a certain level of intensity
Treaty law relating to internal armed conflict
o Common Article 3 of the four GC 1949

3. o 1977 Additional Protocol II
1.3 International Humanitarian Law (IHL) v International Human Rights Law (IHRL)
Comparison ;
IHL – branch of IL which protects persons and property that may be affected by
an armed conflict + limits the rights of the parties to an armed conflict to use
methods/ means of warfare of their own
When applicable – only in times of armed conflict whether international / non
international – no derogations are permitted
Who is bound? – binds all parties to an armed conflict (international armed
conflict ; must be observed by the states involved. Non international conflict ;
binds the government and the groups fighting against or among themselves
Individual – impose obligation on individuals and provides that they may be held
criminally responsible for war crimes – individual will also be accountable for
war crimes committed
IHRL – provides for fundamental rights of individuals as against their won
government
When applicable – at all times (peace time and in armed conflict situation) –
may derogate if situation of emergency arises
Who is bound – lays down rules binding government in their relations with
individuals
Individuals – provides for individual criminal responsibility for violations –
genocides, crimes against humanity and torture – subject to universal
jurisdiction
2.0 Basic Principles
2.1 Military necessity and humanity
Leiber Code – military necessity is ‘those measures which are indispensable for
securing the ends of the war and which are lawful according to the modern laws
and usages of war

4. US Air Force Manual – laid down four basic elements of the concept of military
necessity
o That force is regulated
o Force is necessary to achieve as quickly as possible the partial/complete
submission of the adversary
o Force is no greater that needed to achieve this
o Not otherwise prohibited
Not possible for military commanders to do anything – must be justified by
military requirements
Humanity ; the preamble of the Hague Convention IV 1907 known as Marten
clause acknowledges the importance of the laws of humanity
Guiding principle – put on brake if on undertaking justified by military necessity
Eg ; a military necessity requires a commander to put to death a wounded
combatants on the ground that they would be able to continue fighting once
recovered – but principle of humanity intercedes on behalf of the wounded -
recognizing horse de combat do not pose an immediate threat and requiring
their lives to be saved.
Striking a balance
Not an easy task – if not war would not cause bloodshed and destruction
IHL takes a middle path – allowing belligerent states much leeway in keeping
with the demands of military necessity + attempt to control their freedom of
action In the name of humanity – IHL as check and balance
Hostage case ; Military Tribunal proclaimed that a belligerent is entitled to do
whatever is required by the military necessity to the extent of not exceeding the
bounds of legitimacy provided under the IHL
2.2 Principle of Distinction
Foundation can be traced back to the preamble of St Petersburg Declaration ;
war is waged against the enemy’s armed forces, not against its civilian objects,
attacks are to be directed at military targets, not a t civilian objects

5. ICJ in the Nuclear Weapons Advisory Opinion – this principle is a principle of
customary international law
Article 48 of Additional Protocol 1 - ‘parties to the conflict shall at all times
distinguish between the civilian population and combatants and between
civilian objects and military objectives and shall direct their operations only
against military objectives
Distinction between combatants and civilian
Combatant ; any member of the armed forces of a party to the conflict – all
other person are non combatant/ civilian
Combatants may be attacked – civilians may not take part in hostilities ; civilians
immunity
Problems – production plans, engineering works/transport would be a
legitimate military object despite the fact that civilians were working in them –
so civilians are at risk (controlled by principle of proportionality)
Distinction between military targets and civilian objects
Attacker has to distinguish between military targets and civilian objects
Article 52 (2) of Additional Protocol I – an object must fulfill two criteria in order
to qualify as a military targets
1) By nature, location, purpose or use – it must make an effective contribution to
military action
2) Its destruction, capture or neutralization must offer a definite military
advantage
Nature ; nature denotes the intrinsic character of the military objectives
MO by nature include – military fortification, installations, bases, military units
and individual members of the armed force, weapon systems, artillery, military
vehicle, aircraft, missiles, buildings occupied by the armed force
Location ; there are objects which have no military function by nature but due
to its location, makes a contribution to military action – bridges, tunnels, hills,
narrow passes, area which are important for military operations

6. Purpose ; ICR pointed that – the criterion of purpose is concerned with the
intended future use of an object, the use that is concerned with its present
function
Use ; objects which are normally used for civilian purpose – can also be used for
military purpose during an armed conflict – schools, hotels, churches (to
accommodate troops/ store military ammunitions)
Offer a concrete and definite military advantage
2.3 Principle of Proportionality
an attempt to balance the conflicting concepts of military necessity and
humanity and is crucial in reducing incidental or collateral damage caused by
military operation.
No separate article of Protocol I devoted to this principle
To be found in two different places
1) Attack prohibited because it is indiscriminate (eg ; attack which may be
expected to cause incidental loss of civilian life, injury to civilians, damages to
civilian objects – excessive in relation to contribution to military advantage)
2) Dealing with precaution attacks
3.0 Protecting the protected persons
3.1 Wounded, sick and shipwrecked
1949 GC I – concerned with the protection of the wounded and sick in the field
1949 GC II – wounded, sick and shipwrecked at sea
Protocol 1 – gives a rather extended definition of what is meant by sick,
wounded and shipwrecked (Article 8) –
a) Wounded and sick ; persons whether military/civilian who because of trauma,
disease/ other physical/mental disorder/ disability are in need of medical
assistance/ care and who refrain from act of hostility
b) Shipwrecked means..
 Covers members of armed force and civilians, provided they refrain from act of
hostility

7. 3.2 Prisoners of war
Lawful combatants and prisoners of war status
Not all persons captured in the course of armed conflict – entitled to the status
of POW and the legal protection associated with it
Basic principle ; persons who are recognized as ‘combatants’ are entitled to be
treated as POW upon capture by enemy
Article 4A of the 1949 Geneva Convention III provides that
POW are persons belonging to one of the categories, who have fallen into the
power of the enemy
1) Members of the armed force of a party to the conflict as well as the members of
militias or volunteer corps forming part of armed force
2) Members of other militias and members of other volunteer corps, including
organized resistance movement provided that they fulfill the following
conditions
a) That of being commanded by a person responsible for his subordinates
b) That of having a fixed distinctive sign recognizable at a distance
c) That of carrying arms openly
d) That of conducting their operations in accordance with the laws and customs of
the war
Article 43 of Protocol 1 – the armed force of a party to a conflict consist of all
organized armed force, groups and units which are under a command
responsible for that party – such armed force shall be subject to an internal
disciplinary system which shall enforce compliance with the rules of
international law applicable in armed conflict and that members of the armed
force – are combatant
Prisoners of War ; Article 44 of Protocol 1
1) Any combatants defined under Article 43 who falls into the power of an adverse
party shall be POW
2) …
3) Combatants are obliged to distinguish themselves from the civilian population
while they are engaged in an attack/ military operation – due to the situation of

8. armed conflict, it is somehow not possible – so he shall retain his status as
combatants provided that he carries his arm openly
a) During each military engagement
b) During such time, he is visible to the adversary while he is engaged in a military
deployment preceding the launching of an attack
General Protection of POW
Article 13 Of Convention III – Prisoners of war must at all times be humanely
treated
Any unlawful act/omission by the detaining power, causing death /seriously
endangering the health of POW – prohibited
POW must at all times – be protected against act of violence/intimidation/insult
and public curiosity
Article 109 – parties to the conflict are bound to send back to their own country
seriously wounded and sick prisoners of war after having cared for them until
they are fit to travel
Once active hostilities have ceased, Article 118 GC III requires POW to be
repatriated without delay
Civilians
Women, child and aged
Geneva Convention IV – no specific protection – only applies to civilians who
during conflict/ occupation of territory, find themselves in the hand of / under
physical control of an adverse party
Those in their territory are only protected by the general rules limiting means
and methods of warfare
Entitled to respect for their persons, honor, family rights, religious conviction
and practice, must be humanely treated and protected from violence, threats,
insults
Women must be treated against sexual attacks and must be treated without any
discrimination
Civilian properties are protected as well
Civilians, civilian population and civilian objects
Apply principle of distinction – both civilian and civilian objects
Civilian immunity – individual shall enjoy general protection against dangers
arising from military operations - unless he takes part In the hostility
No reprisals against civilian

9. Direct and deliberate attack ; Rome Statute of the International Criminal Court
categorizes as a war crime an intentional directs attack against the civilian
population (civilian and objects)
The intention is crucial – no assurance that attacks against the
combatants/military objectives will not result in casualties
Indiscriminate attack
Article 51 (4) of the Protocol I, indiscriminate attacks are prohibited and envisaged two
types of attacks
a) Area bombardment aka carpet bombing – characteristic of such bombing that it
destroys all life in a specific area and razes to the ground all buildings situated there
b) Refers to an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects / combination of both – which would be
excessive to the concrete and direct military advantage anticipated
Apply principle of proportionality
Precaution in attack ;
Protection of places of worship and cultural heritage
Prohibited to commit any acts of hostility directed against the historic
monument, works of art / places of worship which constitute the cultural /
spiritual heritage of peoples
Protection of objects indispensable to the survival of civilian population
Article 54 of Protocol I – Starvation of civilians as method of warfare is
prohibited
Prohibited to attack, destroy, remove or render useless objects indispensable to
the survival of the civilian population (foodstuff, agricultural area for the
production of foodstuff, livestock, drinking water installation)
4.0 The Conduct of Hostilities
Illegal weaponry
Though the object of an armed conflict is to achieve victory over the adverse party – principle of
humanity remains relevant
Weapons causing unnecessary suffering

10. Prohibited to employ weapons, projectiles and materials and methods of warfare of a
nature to cause unnecessary suffering
Methods or means of warfare causing long term and severe damage to environment
Article 35(3) of the Additional Protocol I – Prohibited to employ methods or means or
warfare which is intended to cause widespread, long term and severe damages to the
environment
Nuclear weapons
Advisory Opinion on Legality of the Threat/ Use of Nuclear Weapons, World Court held
that – a threat / use of nuclear weapons that is contrary to Article 2 (4) of the UNC and
fails to meet all the requirement of Article 51 (relating to self defence) Is unlawful – but
cannot conclude whether the use of nuclear weapons in an extreme circumstances of
self defence is justified or not
Gas, chemical and bacteriological weapons
Mines, booby traps and incendiaries
1980 a Convention on Prohibition or Restriction on the use of Certain Conventional
Weapons which may be deemed to be Excessively Injurious or to have indiscriminate
Effect was adopted
Parties to the convention adopted three Protocols – Protocol III prohibits the use of
mines and booby traps – amended in 1996, further restriction on the use of mines and
booby traps
Poison and starvation
Hague Regulation 23 (a) – forbidden to use starvation as a weapon against the civilian
population
Other methods and means of warfare
Perfidy and ruses of war
Article 23 of the Hague Regulations ; forbidden to kill or wound treacherously
individuals belonging to hostile nation or army

11. Article 37 (1) of Additional Protocol 1 – prohibited to kill, injure/ capture by resort to
perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is
entitled to, obliged to accord, protection under IL applicable to armed conflict, with
intent to betray that confidence – constitutes perfidy
Perfidy is prohibited – but ruses of war are permitted ; measures taken to secure
advantage over the adverse party
Denial of quarter
Hague Regulation 23 (4) – forbidden to declare that no quarter shall be given
5.0 Non International Armed Conflict
IL may not intervene in domestic affairs of a state – the only provision applicable to non
international armed conflict – Common Article 3 of Geneva Conventions 1949
Common Article 3 of Geneva Conventions 1949 – content (apply as a minimum, the
stated provisions)
Humanitarian principle – foundation of respect for human persons
Article states clearly ‘each party to the conflict’ – not only the state party but also rebels,
non state parties (numerous case of non compliance ; Rwanda and Bosnia – violation of
basic humanitarian principle, Sri Lanka – prolonged hostilities resulted with numerous
casualties)
The application of Additional Protocol II
Previously, Common Article 3 stood alone – governing the non international armed
conflict – But Additional Protocol II 1977 provides more extensive provisions more non
international armed conflict
The parties to the conflict
To come within the scope of Additional Protocol II – internal armed conflict must involve
hostilities between the armed force of a contracting party and other groups of armed
force or organized armed groups – does not apply where two or more organized armed
groups confront each other in any state (no active part in hostilities by government
troops)

12. For AP to be applicable, following requirements must be satisfied
1) responsible command
2) control over a part of territory
3) willing and able to implement the protocol