International Humanitarian Law Notes PDF

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Warning: TT: undefined function: 32 1 Conduct of Hostilities Limitations on the means and methods of war. It aims at balance between legitimate military action and civilian sufferings. Remained unwritten for the time. Now it has been shaped in a code. The concept originated in 19th century. Subseque...

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| 7th Semester

IHL NOTES

1. Conduct of Hostilities 1. Limitations on the means and methods of war. 2. It aims at balance between legitimate military action and civilian sufferings. 3. Remained unwritten for the time. 4. Now it has been shaped in a code. 5. The concept originated in 19th century. 6. Subsequently, so many treaties and customary laws came into force to regulate the means and methods of warfare, i.e. Geneva conventions and additional protocols and subsequent several laws in conventions. 7. Other treaties regulates the use of weapons. 8. Indiscriminate military actions are prohibited. 9. All sides must consider the legitimate military targets and civilian objects. 10. Deliberately targeting civilians is a war crime. 11. Military targets must be separated from the civilians.. 12. Likely injuries to the civilians must be minimized as far as possible. 13. Attacks on the targets which may cause greater injuries to the civilians as compared to the military, then it should be omitted. 14. Terrorism on civilian population is prohibited. 15. Destruction of following is prohibited: i. ii.

Crops Water supplies

iii.

Medical facilities

iv.

Housing

v. vi.

Non-military transport Human shields

vii. Hostage taking 16. Military action must be proportionate to the military objective. 17. Excessive use of power which may lead to unnecessary deaths of civilian is prohibited. 18. Wounded and sick, which are not taking part in war must be respected. 19. It also aims to protect the culture and environment. 20. Choice of weapons must be regulated with the laws.

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IHL NOTES

2. Permissible means of war 1. IHL limits the means and methods to initiate the war. (Wage War) 2. Wage war: “To instigate or initiate war against some other country or group of people.” 3. Restrictions applies on: i. ii. iii.

Type of weapon used The way of using weapons The conduct of engaged combatants

4. The main treaties placing limits on methods and means of waging war are i. ii.

the Hague Convention of 1907, the 1977 Additional Protocols to the Geneva Conventions

5. IHL prohibits the unnecessary sufferings. 6. Specific weapons are restricted through specific treaties. 7. Other than weapons, following acts are also prohibited: i. ii. iii.

Misuse of flags Unnatural behavior with mercenaries (official soldiers) An order to destroy all.

8. Combatants are allowed to act & participate in the hostilities (Wars) 9. Civilians participating directly, can be targeted. 10. Objects other than Military Objective, are of civilian which mustn’t be attacked. 11. Combatants must differentiate themselves by wearing uniform. 12. Civilian loss mustn’t be greater than military targeted objective. 13. The rules of CONDUCT OF HOSTILITIES grants special protection to the: i.

Cultural objects

ii.

Spiritual objects

iii. iv.

Historical monuments Agricultural areas

v.

Dangerous installations of human use

vi.

Environment

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IHL NOTES

3. Rome Statute of International Criminal Court (ICC) 1. It is a treaty established under the international criminal court. 2. It was adopted in a diplomatic conference at Rome, Italy on 17th July 1998. 3. It was enforced on 1st July 2002 and now 123 states are parties to the statute. 4. The statute elaborates the functions, structure, and Jurisdiction of ICC. 5. The stature talks about four crimes which include: i. ii. iii.

Genocide (Art.6) Crime against Humanity (Art. 7) War Crimes (Art.8)

iv. Crime of aggression (Art.8 bis) 6. It comes into play where states failed to compromise and situation is so worst. 7. Jurisdiction of the Statute: i.

Try offences committed within the territory of the party state

ii.

Try offences committed by the national of the party state.

iii. Try offences which UNO permits. 8. The aim of it is to make responsible individual for any serious crime against humanity. 9. ICC can prosecute individual not a state or organization. 10. Amendment in the statute needs 2/3 majority of the state parties. (66%) 11. THE STRUCTURE OF Rome statute:

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IHL NOTES

4. International Criminal Tribunal for Rwanda (ICTR) 1. It was established in Nov 1994 by UNO security council. 2. It was established for investigating and trying the offences of Rwandan genocide and violations of international law in Rwanda in the year 1994. 3. The Rwandan genocide refers to the mass slaughter of more than 800,000 ethnic Tutsi and politically moderate Hutu. 4. The Rwandan genocide was done by Hutu extremists and police in Rwanda. 5. The tribunal had jurisdiction over genocide, crimes against humanity, and violations of Common Article Three and Additional Protocol II of the Geneva Conventions (which deals with internal conflicts). 6. The first trial, of Jean-Paul Akayesu, began in 1997. 7. The ICTR indicted a total of 96 individuals 8. The Tribunal was officially closed on 31 December 2015. 9. The tribunal consisted of 16 judges in four "chambers" – three to hear trials, and one to hear appeals. 10. There were 9 judges ad litem & 9 ad literim (on absence of a litem judge).

5. International Criminal Tribunal for the former Yugoslavia (ICTY) 1. Established by the UN for prosecuting the serious offenders in Yugoslav wars. 2. it was an ad hoc court in Hague, Netherlands. 3. It has jurisdiction over four serious offences which include: i.

Grave breaches of Geneva Conventions

ii. iii.

Violations of customs and laws of war Genocide

iv.

Crimes against humanity

4. The maximum punishment, ICTY can give is life imprisonment. 5. Total 161 culprits were arrested and prosecuted. 6. The final judgement was given on 29 Nov 2017. 7. The Tribunal came to an end on 31 Dec 2017. 8. The structure was comprised of Chambers, Registry and Office of the Prosecutor. 9. Prosecutor was liable to gather evidence and investigate the offences. 10. Chambers were comprised of Judges. There were 3 Trial and 1 appellate chambers. 11. Total 86 judges had been appointed. (51 Permanent, 36 ad litem & 1 ad hoc) 12. Registry was the administrator of the tribunal.

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IHL NOTES

6. UNO role in the implementation of IHL 1. The UN charter confers the law before war (jus ad bellum) while IHL applies during the war and give protection (jus ad bello). 2. UNO prevent the war while IHL prevents sufferings in case if the war has begun. 3. As per the charter of UN, article 1 and 5 elaborate the promotion of peace and security with the preservation of human rights. 4. Therefore, UN’s Security Council have powers to deal with IHL. 5. Where there are human rights there will be IHL. 6. As Geneva Conventions 1949 don’t mention UNO but Protocol I mentions UN for the execution of conventions. 7. Following 3 main functions UN perform for the IHL’s implementation: i. Codification of IHL ii. Ensuring prosecution and punishment on the violation of IHL. iii. Increasing respect of IHL among party states.

7. Principles regulating Warfare There are 5 most common principles regulating the warfare: 1. Military Necessity The attack must be on military objects not on civilians. The attack which is necessary to defeat the enemy. 2. Distinction There must be clear difference between Combatants(Soldiers) and civilians. 3. Proportionality An attack likely to destroy civilian objects more than military objects must be cancelled. 4. Humanity Restricted weapons must not be used. 5. Honor (Chivalry) Personal pride must be preserved. Ensure that they are fighting for their respective states not for personal hostility.

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| 7th Semester

IHL NOTES

8.

IHL and Humanity in war

1. IHL and Human rights law are complement to each other. 2. They both are concerned to protect life, dignity and health of individual. 3. The distinction is that, IHL applies in war but HR applies in peace and war both. 4. IHR can be suspended by the state but IHL can’t. 5. Both require an state to legislate and implement the obligations. 6. IHL based on Geneva and Hague Conventions while IHR is based on UDHR.

9. Use of Weapons 1. IHL’s basic principles govern the use of weapons of certain kinds. 2. ICRC vital role in prohibiting certain hazardous weapons. 3. Major aim of the IHL is to lessen the sufferings 4. It also restricts the behavior of the combatants towards the civilians. 5. Early treaties banned: i. The use of exploding projectiles weighing less than 400 grams.(1868) ii.

iii.

Bullets that flatten upon entering the human body.(1899)

The use of poison gas and bacteriological methods of warfare.(1925)

6. IHL reviews the new weapons. 7. There is no absolute ban on nuclear weapons. 8. Arms Trade Treaty (ATT) binds the states to comply with the international standards of the weapons and their ammunition. 9. Cluster munition weapons were banned in 2010 through a convention. 10. Cluster Munition: A cluster munition is a form of air-dropped or ground-launched explosive weapon that releases or ejects smaller submunitions. Commonly, this is a cluster bomb that ejects explosive bomblets that are designed to kill personnel and destroy vehicles.

11.Treaties that restricts the use of certain kinds of Weapons: Weapon

Treaty

Explosive projectiles weighing less than 400 grams

Declaration of Saint Petersburg (1868)

Bullets that expand or flatten in the human body

Hague Declaration (1899)

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IHL NOTES

Poison and poisoned weapons

Hague Regulations (1907)

Chemical weapons

Geneva Protocol (1925) Convention on the prohibition of chemical weapons (1993)

Biological weapons

Geneva Protocol (1925) Convention on the prohibition of biological weapons (1972)

Weapons that injure by fragments which, in the human body, escape detection by X-rays

Protocol I (1980) to the Convention on Certain Conventional Weapons

Incendiary weapons

Protocol III (1980) to the Convention on Certain Conventional Weapons

Blinding laser weapons

Protocol IV (1995) to the Convention on Certain Conventional Weapons

Mines, booby traps and "other devices"

Protocol II, as amended (1996), to the Convention on Certain Conventional Weapons

Anti-personnel mines

Convention on the Prohibition of Anti-Personnel Mines (Ottawa Treaty) (1997)

Explosive Remnants of War

Protocol V (2003) to the Convention on Certain Conventional Weapons

Cluster Munitions

Convention on Cluster Munitions (2008)

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