2. Relevant Reading
• Dr. Nurun Nahar, ‘A Textbook of International Humanitarian Law,’ ( Chapter:
01, pp 01- 12)
• Barrister Ahmed Kabir & Barrister Shuvra Chowdhury, ‘Introduction to
International Humanitarian Law’ ( pp 01-42)
• Dr. M. Ershadul Bari, ‘ Introduction to International Humanitarian Law’ The
Dhaka University Studies 9(1)(1998): 1-29
3. Overview
• Definition of IHL
• Nature and scope of IHL
• Objectives of IHL
• Origin and Sources of IHL
• Principles of IHL
• Relation between IHL and Human Rights Law
4. Definition of IHL
• International humanitarian law (IHL) regulates relations between States,
international organisations and other subjects of international law. It is a
branch of public international law that consists of rules that, in times of
armed conflict, seek – for humanitarian reasons – to protect persons who are
not or are no longer directly participating in the hostilities, and to restrict
means and methods of warfare. In other words, IHL consists of
international treaty or customary rules (i.e. rules emerging from State practice
and followed out of a sense of obligation) that are specifically meant to
resolve humanitarian issues arising directly from armed conflict, whether of
an international or a non-international character.
5. Nature and scope of IHL
• It is a prominent branch of international law.
• IHL is international hard law as it creates obligation upon the subjects.
• IHL is only applicable in time of armed conflict.
• IHL is applicable in both international and non-international armed conflict.
• Application of IHL starts, when war starts.
6. • Violation of IHL creates international criminal responsibility.
• International humanitarian law is separate from human rights law , although
with a common purpose.
7. Military necessity and humanity
• IHL is a compromise between two underlying principles, of humanity and of
military necessity. These two principles shape all its rules.
• The principle of military necessity permits only that degree and kind of
force required to achieve the legitimate purpose of a conflict, i.e. the
complete or partial submission of the enemy at the earliest possible moment
with the minimum expenditure of life and resources. It does not, however,
permit the taking of measures that would otherwise be prohibited under
IHL. The principle of humanity forbids the infliction of all suffering, injury
or destruction not necessary for achieving the legitimate purpose of a
conflict.
8. Objectives of IHL
There are three main objectives of IHL:
• To alleviate the sufferings of the victims of the armed conflict
• To protect the people who do not directly take part in the hostilities,
but affected or liable to be affected by the conflict from the
consequences of the conflict and also their property.
• To limit and control the choice of means and methods of warfare.
• The philosophy of these objectives is to humanise the war to its possible
extent and to ensure humane treatment to the victim of war.
9. • Examples of the first objective:
Treatment of wounded, sick and shipwrecked persons, Treatment of
prisoners of war
• Examples of the second objective:
Protection of civilian population, Protection of civilian objects, Protection of
cultural properties
10. • Examples of the third objective:
Prohibition of the use of weapons, projectiles, materials causing superfluous
injury or unnecessary sufferings;
Prohibition of the use of weapons causing wide-spread long –term and
severe damage to the natural environment such as biological weapons,
chemical weapons, anti-personal mine and so on
11. Sources of IHL
• Article 38 of ICJ Statute will apply to IHL as it is a branch of public
international law.
• International Treaties and Treaties and customs are the main sources of IHL
12. Statute of the International Court of Justice Article 38(1)
• 1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
• a. international conventions, whether general or particular, establishing rules
expressly recognised by the contesting states;
• b. international custom, as evidence of a general practice accepted as law;
• c. the general principles of law recognised by civilized nations;
13. Primary sources
International Treaties and Treaties and customs are the main sources of IHL
In terms of treaty regime , IHL has two main streams-
a. Hague Law and
b. Geneva Law.
14. • Hague law basically deals more with the means and methods of warfare
and establishes the rights and obligations of belligerents in the conduct of
military operations, limits the harming the enemy.
• Geneva law mainly offers the protection of the victims of war.
15. • It is noted that the two branches of IHL draw their names from the cities
where each was initially codified.
• These two streams have been merged after the codification of the Additional
Protocol 1 and II.
16. Examples of Hague Law Treaty Regime
• 1868 St. Petersburg Declaration Renouncing the Use, In Time of war of
Exclusive Projectile
under 400 Grammes Weight.
• 1899 Hague Declaration 2 Concerning Asphyxiating Gases
• 1899 Hague Declaration 3 Concerning Expanding Bullets
• 1899 Hague Convention III for the Adaptation to Maritime Warfare of the
Geneva Convention of 1864
17. • 1899 Hague Regulations Concerning the Laws and Customs of War on Land
• 1907 Hague Convention IV Respecting the Laws and Customs of War on
Land
• 1954 Hague Convention and Protocol for the Protection of Cultural
Property
18. • 1949 Geneva Convention IV Relative to the Protection of Civilian Persons
in Time of War
• 1977 Geneva Protocol 1 Additional to the 1949 Geneva Conventions, and
Relating to the Protection of Victims of International Armed Conflict
• 1977 Protocol II Additional to the 1949 Geneva Conventions , and Relating
to the Protection of Victims of Non-International Armed Conflicts
19. Principles of IHL
• Distinction between civilians and combatants
• Prohibition of attacks against those hors de combat
• Prohibition on the infliction of unnecessary suffering
• Principle of proportionality
• Notion of necessity
• Principle of humanity
20. The principle of distinction between civilians and combatants
• The principle of distinction underpinning many rules of IHL is that only
fighters may be directly targeted. This is a necessary compromise that IHL
provides for in order to protect civilians in armed conflict. Without the
principle of distinction, they would be no limitation on the methods of
warfare.
21. The principle of distinction between civilians and combatants
• The specific rules where the principle of distinction is set out concerns
Article 48 and 52 of Additional Protocal 1 to the Geneva Conventions. This
defines who is a combatant and a military object that can be lawfully
attacked. Any direct attack against a civilian or civilian object is not only a
violation of IHL but also a grave breach. Direct attacks against civilians
and/or civilians objects are categorised as war crimes. Additionally, any
weapon which is incapable of distinguishing between civilians/civilian
objects and fighters/military objects is also prohibited under IHL. The
principle is also a rule of customary international law, binding on all states.
22. The prohibition of attacks against those hors de combat
• The prohibition to attack any person hors de combat (those who are sick and
wounded, prisoners of war) is a fundamental rule under IHL. For example,
while a solider could be targeted lawfully under normal circumstances, 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 being a Prisoner of War.
23. The prohibition on the infliction of unnecessary suffering
• While IHL does permit violence, it prohibits the infliction of unnecessary
suffering and superfluous injury. While the meaning of such terms is unclear
and the protection may as such be limited, even fighters 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.
24. The principle of proportionality
• The principle of proportionality limits and protects potential harm to
civilians by demanding that the least amount of harm is caused to civilians,
and when harm to civilians must occur it needs be proportional to the
military advantage. The article where proportionality is most prevalent is in
Article 51(5) (b) of API concerning the conduct of hostilities which
prohibits attacks when the civilian harm would be excessive in relation to the
military advantage sought. This is an area of hostilities where we often hear
the term ‘collateral damage’.
25. The principle of proportionality
• The principle cannot be applied to override specific protections, or create
exceptions to rules where the text itself does not provide for one. As with
the principle of necessity, the principle of proportionality itself is to be
found within the rules of IHL themselves. For example, direct attacks against
civilians are prohibited and hence a proportionality assessment is not a
relevant legal assessment as any direct attack against even a single civilian
who is not taking part in hostilities is a clear violation of IHL.
Proportionality is only applied when a strike is made against a lawful military
target.
26. The notion of necessity
• A dominant notion within the framework of IHL is military necessity, often the principle which
clashes most with humanitarian protection. Military necessity permits armed forces to engage in
conduct that will result in destruction and harm being inflicted. The concept of military necessity
acknowledges that under the laws of war, winning the war or battle is a legitimate consideration.
• However the concept of military necessity does not give the armed forces the freedom to ignore
humanitarian considerations altogether and do what they want. 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,
Article 52 of Addition Protocol I lists those objects that can be subject to lawful attacks. The
notion cannot be applied to override specific protections, or create exceptions to rules where the
text itself does not provide for one.
27. The principle of humanity
• The principle of humanity, and its absence during the battle of Solferino of
1859, was the central notion that inspired the founder of the International
Committee of the Red Cross (ICRC), Henry Dunant. The principle
stipulates that all humans have the capacity and ability to show respect and
care for all, even their sworn enemies. The notion of humanity is central to
the human condition and separates humans from animals
28. The principle of humanity
• 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.
29. Principles applicable to Means and Methods of Warfare
• The Declaration of St. Petersburg ,1868 prohibited the use of projectiles
weighing less than 400 grammes that uselessly aggravated the suffering of
disabled man or rendered their death inevitable.
• The preamble of this Declaration states “the only legitimate object which
States should endeavour to accomplish during war is to weaken the military
forces of the enemy”.
30. Principles applicable to Means and Methods of Warfare
• Hague Regulations 1999 Concerning the Laws and Customs of War on
Land annexed to the Hague Convention of 1899
• These Regulations codified the laws of war and contain in particular 17
articles to the treatment of the prisoners of war. The first of these asserted
that such prisoners are in the power of the enemy government, but not of
the soldiers who captured them. The Government might intern them to keep
them from taking up arms against it again, but had to treat them humanely,
on the same footing as their own troops.
31. • The Hague Convention IV, 1999 which was revised in 1907 ( Hague Convention
No. IV of 18 October 1907 respecting the Laws and Customs of War on Land).
• The regulations codified
a. the law of war and contained in particular rules on the treatment of prisoners of
war,
b. on the conduct of military operations-with an especially important chapter on the
“ Means of Injuring the Enemy, Sieges and Bombardment”- and
c. on the occupied territory.
32. • The second Hague Conference also examined war at sea and adopted several
conventions on different aspects of the law of war at sea.
• On the basis of the experience of the World War 1, one of the two 1929
Geneva Conventions consisted in fact a Prisoner-of-War Code, which in tern
was also developed after the World War II
33. • The Preamble paragraphs to the Convention contains Martens Clause “ in
cases not covered by the rules of law, “ the inhabitants and belligerents
remain under the protection and the rule of the principles of the law of
nations, as they result from the usages established by civilised peoples, from
the laws of humanity, and the dictates of public conscience”.
• The Martens Clause constitutes a “ legal safety-net’. Where there are loopholes
in the rules of positive law, says the Martens Clause, then a solution based on
basic humanitarian principles must be found
34. 4 Geneva Conventions
• The representatives of 48 states unanimously adopted four Geneva
Conventions for the protection of wounded, sick, shipwrecked, prisoners
of war and civilians.
• These conventions were the result of lengthy consultation which ICRC had
undertaken on the strength of its experience during second world war.
• First three conventions cover the protection of the wounded and sick and
shipwrecked and prisoners of war.
35. • Fourth Geneva Convention protects civilian persons who have fallen into the
hands of enemy from arbitrary treatment and violence
36. Relation between IHL and Human Rights (HR)
• IHL is applicable only in the time of war and HR is applicable both in the
time of war and peace.
• IHL is law, and HR is right, right must be protected even not turned into law
• IHL is separate from HR in terms of sources.
• HR originate from the national law documents and IHL from International
law documents.
• IHL and HR overlap sometimes.
37. Relation between IHL and Human Rights (HR)
• IHL and international human rights law are complementary bodies of international
law that share some of the same aims. Both IHL and human rights law strive to
protect the lives, the health and the dignity of individuals, albeit from different
angles – which is why, while very different in formulation, the essence of some of
the rules is similar. For example, both IHL and human rights law prohibit torture or
cruel treatment, prescribe basic rights for persons subject to criminal process,
prohibit discrimination, contain provisions for the protection of women and
children, and regulate aspects of the right to food and health. There are however
important differences between them: their origins, the scope of their application,
the bodies that implement them, and so on
38. Origins
• IHL, the origins of which are ancient, was codified in the second half of the
19th century, under the influence of Henry Dunant, the founding father of
the International Committee of the Red Cross
• Human rights law is a more recent body of law: it had its origins in certain
national human rights declarations.
39. Temporal scope of application
• While IHL applies exclusively in armed human rights law applies, in
principle, at all times, i.e. in peacetime and during armed conflict. However,
unlike IHL, some human rights treaties permit governments to derogate
from certain obligations during public emergencies that threaten the life of
the nation. Derogation must, however, be necessary and proportional to the
crisis, must not be introduced on a discriminatory basis and must not
contravene other rules of international law – including provisions of IHL
40. Personal scope of application
• IHL aims to protect persons who are not or are no longer taking direct part
in hostilities. It protects civilians and combatants hors de combat, such as the
wounded, the sick and the shipwrecked or prisoners of war. Human rights
law, developed primarily for peacetime, applies to all persons within the
jurisdiction of a State. Unlike IHL, it does not distinguish between
combatants and civilians or provide for categories of ‘protected person’.
41. Parties bound by IHL and human rights law
• IHL binds all parties to an armed conflict and thus establishes an equality of
rights and obligations between the State and the non-State side for the
benefit of everyone who may be affected by their conduct (an essentially
‘horizontal’ relationship).
• Human rights law explicitly governs the relationship between a State and
persons who are on its territory and/or subject to its jurisdiction (an
essentially ‘vertical’ relationship),
