Introduction to International Humanitarian Law

Abstract

International Humanitarian Law (IHL) is that portion of international law which is inspired by considerations of humanity. It aims to minimize the suffering of those not, or no longer, taking part in hostilities and to render the fighting more humane by restricting the use of barbaric weapons. Although the origins of contemporary IHL can be traced back to the nineteenth century, it is based on principles and practices which are much older. The two principal sources of IHL are the Hague and Geneva Conventions, the former setting out restrictions on the means and methods of warfare and the latter providing protection to certain categories of vulnerable persons. It is generally accepted that a large portion of the principles permeating IHL reflect customary international law and, in some cases, peremptory law (jus cogens). As such, it is binding on all States, irrespective of whether they have acceded to the relevant treaties. Although IHL has made a difference in protecting vulnerable individuals and restricting the means and methods of warfare, tragically, there are countless examples of violations of IHL in armed conflicts around the world and a number of other challenges still remain.

Notes

2 Professor Pictet was vice president of the ICRC and chairman of the ICRC Law Commission. See Pictet, J. (1985) Developments and Principles of International Humanitarian Law (Boston: Martinus Nijhoff Publishers), p. 1.

1 For a clear outline of the International Red Cross and Red Crescent Movement, and its three components, i.e. the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies and the recognized National Red Cross and Red Crescent Societies, refer to the article on: ‘National Red Cross and Red Crescent Societies: Humanitarian Partner of Choice for Commonwealth States’ infra.

4 O’Keefe, R. (2006) The Protection of Cultural Property in Armed Conflict, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press), pp. 5–6.

3 Doebbler, C. F. J. (2005) Introduction to International Humanitarian Law (Washington: CD Publishing), p. 5. See also Bantekas, I. (2002) Principles of Direct and Superior Responsibility in International Humanitarian Law (Manchester: Manchester University Press), p. 1; Elias, T. O. (1979) New Horizons in International Law (Leiden: Brill Publishers), p. 181.

5 In this period, international law had very little to say about when sovereign States could wage war, and the distinction between ‘just’ and ‘unjust’ wars become increasingly blurred. See Kennedy, D. (2006) Reassessing International Humanitarianism: The Dark Sides, in A. Orford (Ed.) International Law and its Others (Cambridge: Cambridge University Press), p. 144.

6 Gardam, J. (2004) Necessity, Proportionality and the Use of Force by States, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press), p. 29.

7 International Committee of the Red Cross (ICRC), What is International Humanitarian Law?, Advisory Service on International Humanitarian Law, Geneva. Available at www.icrc.org.

9 ICRC (2002) What are the Origins of International Humanitarian Law?, Advisory Service on International Humanitarian Law, Geneva. Available at www.icrc.org.

8 One of the five founding members of the ICRC. The others were: Gustave Moynier, Henry Dunant, Dr Louis Appia and Dr Théodore Maunoir.

10 Russian note of 30 December 1898/11 January 1899. Available at http://www.yale.edu/lawweb/avalon/lawofwar/hague99/hag99-02.htm.

11 Villiger, M. E. (1985) Customary International Law and Treaties: A Study of Their Interactions and Interrelations with Special Consideration of the 1969 Vienna Convention on the Law of Treaties (Boston: Martinus Nijhoff Publishers), p. 66.

12 These were: (a) Convention for the peaceful adjustment of international differences; (b) Convention regarding the laws and customs of war by land; and (c) Convention for the adaptation to maritime warfare of the principles of the Geneva Convention of the 22 August 1864. The three Declarations were: (a) To prohibit the launching of projectiles and explosives from balloons or by other similar new methods; (b) To prohibit the use of projectiles the only object of which is the diffusion of asphyxiating or deleterious gases; and (c) To prohibit the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core, or is pierced with incisions.

13 Final Act of the International Peace Conference; July 29, 1899, The Avalon Project at Yale Law School, 1998. Available at http://www.yale.edu/lawweb/avalon/lawofwar/final99.htm.

14 Final Act of the Second Peace Conference. The Hague, 18 October 1907, International Committee of the Red Cross, Treaties Home. Available at http://www.icrc.org/ihl.nsf/FULL/185?OpenDocument.

15 These were: (a) Convention for the pacific settlement of international disputes; (b) Convention respecting the limitation of the employment of force for the recovery of contract debts; (c) Convention relative to the opening of hostilities; (d) Convention respecting the laws and customs of war on land; (e) Convention respecting the rights and duties of neutral powers and persons in case of war on land; (f) Convention relative to the status of enemy merchant ships at the outbreak of hostilities; (g) Convention relative to the conversion of merchant ships into warships; (h) Convention relative to the laying of automatic submarine contact mines; (i) Convention respecting bombardment by naval forces in time of war; (j) Convention for the adaptation to naval war of the principles of the Geneva Convention; (k) Convention relative to certain restrictions with regard to the exercise of the right of capture in naval war; (l) Convention relative to the creation of an International Prize Court; and (m) Convention concerning the rights and duties of neutral powers in naval war. The two Declarations were: (i) To prohibit the discharge of projectiles and explosives from balloons; and (ii) On compulsory arbitration. This Conference also gave rise to the Permanent Court of Arbitration, the oldest international legal institution in the Hague. See van Krieken, P. and McKay, D. (2005) The Hague—Legal Capital of the World (Cambridge: Cambridge University Press), p. 113.

16 See Zammit Borda, A. (2003) The Threat and Use of Chemical and Biological Weapons under International Law, LLD Thesis, p. 19. Available at the Peace Palace Library, The Hague.

17 Villiger, op. cit., n 11, p. 66.

18 See ICRC (2006) The Geneva Conventions: The Core of International Humanitarian Law. Available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/genevaconventions.

19 The term ‘grave breaches’ is defined in Articles 50, 51, 130 and 147 of the I, II, III, and IV Geneva Conventions respectively, and includes wilful killing, torture or inhuman treatment, if committed against persons or property protected by the Conventions.

20 Martin, F. F. et al. (2006) International Human Rights and Humanitarian Law: Treaties Cases and Analysis (Cambridge: Cambridge University Press), p. 22.

21 Statute of the International Court of Justice, 59 Stat. 1005, T.S. 993, 26 June 1945.

24 See ICRC, Promotion of International Humanitarian Law within the Commonwealth, paper originally presented by the ICRC in collaboration with the British Red Cross at the Meeting of Law Ministers and Attorneys General of Small Commonwealth Jurisdictions, organized by the Legal and Constitutional Affairs Division of the Commonwealth Secretariat, on 4–5 October 2007. It is important to point out that this list is not exhaustive.

22 See, for instance, Martin, op. cit., n 20; and Gardam, J. G. (1993) Non‐combatant Immunity as a Norm of International Humanitarian Law (Boston: Martinus Nijhoff Publishers).

23 Some academic authors have tried to define IHL narrowly, and distinguish between the ‘law of Geneva’ and the ‘law of the Hague’. However, it has been argued that this distinction has never been more than a convenient but imprecise simplification, which has progressively lost in significance. See Abi‐Saab, G. (1984) The Specificities of Humanitarian Law, in C. Swinarski (Ed.) Studies and Essays on International Humanitarian Law and Red Cross Principles (Boston: Martinus Nijhoff Publishers), p. 265, fn 1.

25 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Resolution 1, International humanitarian law: from law to action; Report on the follow‐up to the International Conference for the Protection of War Victims, International Review of the Red Cross 310 (1996), p. 58.

26 Henckaerts, J. M. and Doswald‐Beck, L. (2005) Customary International Humanitarian Law, 2 volumes, Volume I. Rules, Volume II. Practice (2 Parts) (Cambridge: Cambridge University Press).

27 Consider Hugo Grotius’s De jure belli et pacis, published in 1625, and mentioned in Doebbler, op. cit., n 3, p. 40.

28 Foremost amongst such weapons should be nuclear weapons which, as was witnessed in Hiroshima and Nagasaki, not only fail to discriminate between combatants and non‐combatants, but also cause mass suffering and destruction. However, when the International Court of Justice (ICJ) was asked to render its Advisory Opinion by the UN General Assembly on the following question: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’, the ICJ delivered the following opinion, by seven votes to seven, by the President’s casting vote:

[T]he threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self‐defence, in which the very survival of a State would be at stake.

29 Doebbler, op. cit., n 3, p. 50.

30 Jus cogens refers to the legal status that certain international crimes reach, and obligatio erga omnes pertains to the legal implications arising out of a certain crime’s characterization as jus cogens. Thus, these two concepts are different from each other. See Bassiouni, M. C. (1996) International crimes: jus cogens and obligatio erga omnes, Law & Contemp. Probs., 59(63), Autumn, Duke Law School, p. 63; and Bantekas, op. cit., n 3, pp. 13 and 24.

31 Borelli, S. (2004) The Treatment of Terrorist Suspects Captured Abroad: Human Rights and Humanitarian Law, in A. Bianchi (Ed.) Enforcing International Law Norms Against Terrorism (Oxford: Hart Publishing), p. 40.

32 The Prosecutor v. Dusko Tadic (‘Prijedor’), Case No. IT‐94‐1‐AR77, Appeals Chamber, 2 October 1995, para. 70.

33 Ibid.

34 Kuper, J. (2005) Military Training and Children in Armed Conflict: Law, Policy and Practice (Boston: Martinus Nijhoff Publishers), p. 10.

35 See Ministry of Justice, The Governance of Britain: War Powers and Treaties—Limiting Executive Powers, Consultation Paper CP26/07, p. 25, para. 48. The undefined nature of ‘armed conflict’ is prone to give rise to differing interpretations, with the possible effect of excluding someone from the protection of IHL. See Orford, op. cit., n 5, p. 23. Speaking about Guantanamo Bay, the author argues: ‘While some US lawyers have argued that these detainees are properly outside the protection of international humanitarian law, this has been responded to with outraged virtue by the rest of the international humanitarian law community’.

36 See Stewart, J. G. (2003) Towards a single definition of armed conflict in international humanitarian law: a critique of internationalized armed conflict, ICRC International Review of the Red Cross, 85(850), June, p. 313.

37 Pictet, J. (Ed.) (1960) Commentaries on the Geneva Conventions of 12 August 1949, Vol. III: Geneva Convention Relative to the Treatment of Prisoners of War (Geneva: ICRC), p. 31.

38 ICRC, What are jus ad bellum and jus in bello?, 2002. Available at http://www.icrc.org/web/eng/siteeng0.nsf/html/5KZJJD.

39 Robertson, A. H. (1984), Humanitarian Law and Human Rights, in Swinarski (Ed.), op. cit., n 23, p. 802. Historically speaking, there is no doubt that humanitarian law is a much older branch of international law, going back, as has been seen above, to the nineteenth century. Nevertheless, the author argues that human rights law is the genus of which IHL is the species. Human rights law relates to the basic rights of all human beings everywhere and at all times; IHL relates to the rights of particular categories of human beings in particular circumstances.

40 Ibid.

41 International Committee of the Red Cross (ICRC), op. cit. fn 7.

42 International Federation of the Red Cross and Red Crescent Societies (2007) Law and Legal Issues in International Disaster Response: A Desk Study, p. 89.