Political and Public International Law › Public International Law

K. International Humanitarian Law

Overview

International humanitarian law (IHL) regulates the conduct of parties to an armed conflict, including non-State armed groups, and protects persons who are not or are no longer participating in hostilities. 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. [International Committee of the Red Cross (“ICRC”)].

Overview

Jus ad Bellum v. Jus in Bello

Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed force in general. The prohibition against the use of force amongst States and the exceptions to it (self-defense and UN authorization for the use of force), set out in the United Nations Charter of 1945, are the core ingredients of jus ad bellum
Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible. (ICRC)

International Human Rights Law v. International Humanitarian Law

IHRL	IHL
Both are aimed at protecting the individual and apply simultaneously in times of international & non-international armed conflicts.	Both are aimed at protecting the individual and apply simultaneously in times of international & non-international armed conflicts.
Protects the individual from abusive or arbitrary exercise of power by State authorities	Regulates the conduct of hostilities and the protection of persons in situations of armed conflict
Human-rights obligations generally apply within a State's jurisdiction, which can extend beyond its territory where it exercises effective control over an area or power or authority over persons.	The personal, material and territorial applicability of IHL essentially depends on the existence of a nexus with an armed conflict
Human rights law focuses specifically on human beings	IHL also directly protects, for example, livestock, civilian objects, cultural property, the environment and the political order of occupied territories.
Human rights law is binding only on States	IHL is binding on all parties to an armed conflict, including non-State armed groups
Human rights law applies irrespective of whether there is an armed conflict. In times of public emergency, however, human rights law allows for derogations from protected rights to the extent actually required by the exigencies of the situation.	IHL applies only in armed conflicts and is specifically designed for such situations. Therefore, unless expressly foreseen in the relevant treaty provisions, the rules and principles of IHL cannot be derogated from

Self Defense v. Just War

SELF-DEFENSE	JUST WAR
It refers to the use of force to repel an attack or imminent threat of attack directed against oneself or others or a legally protected interest. Self-defense in international law refers to the inherent right of a State to use of force in response to an armed attack. (ICRC)	Just-war theory is an ethical framework for assessing when resort to war and conduct in war are justified. It is distinct from the legal right of self-defense under Article 51, which governs a State’s resort to force in response to an armed attack, and from IHL, which governs conduct during armed conflict. (UN Charter, Art. 51; Geneva Conventions, common Art. 1)

CORE INTERNATIONAL OBLIGATIONS OF STATES IN INTERNATIONAL HUMANITARIAN LAW

Common Article 1 of all four Geneva Conventions is a key provision when it comes to a state’s responsibilities under IHL. It provides that states are responsible to “respect and ensure respect” for the conventions in all circumstances.

CORE INTERNATIONAL OBLIGATIONS OF STATES IN INTERNATIONAL HUMANITARIAN LAW

International Humanitarian Law covers two areas:

the protection of those who are not, or no longer, taking part in the fighting; and
restrictions on the means of warfare, in particular, weapons and methods of warfare, such as military tactics. (What is International Humanitarian Law?, Advisory Service on International Humanitarian Law, ICRC, Jul. 2004)

Obligations are found primarily in the four Geneva Conventions of 1949 and the Additional Protocols I and II thereto. Other sources include:

1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, and its two protocols;
1972 Biological Weapons Convention;
1980 Conventional Weapons Convention and its five protocols;
1993 Chemical Weapons Convention;
1997 Ottawa Convention on anti-personnel mines;
2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (What is International Humanitarian Law?, Advisory Service on International Humanitarian Law, ICRC, Jul. 2004)

International Humanitarian Law covers two areas:

the protection of those who are not, or no longer, taking part in the fighting; and
restrictions on the means of warfare, in particular, weapons and methods of warfare, such as military tactics. (What is International Humanitarian Law?, Advisory Service on International Humanitarian Law, ICRC, Jul. 2004)

Obligations are found primarily in the four Geneva Conventions of 1949 and the Additional Protocols I and II thereto. Other sources include:

1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, and its two protocols;
1972 Biological Weapons Convention;
1980 Conventional Weapons Convention and its five protocols;
1993 Chemical Weapons Convention;
1997 Ottawa Convention on anti-personnel mines;
2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (What is International Humanitarian Law?, Advisory Service on International Humanitarian Law, ICRC, Jul. 2004)

Authorities

1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict
1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
Additional Protocol I to the Geneva Conventions
Additional Protocol I; Additional Protocol II
Additional Protocol II to the Geneva Conventions
Biological Weapons Convention (1972)
Biological Weapons Convention, Sec. 1972
Chemical Weapons Convention (1993)
Chemical Weapons Convention, Sec. 1993
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (1980)
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (CCW), Sec. 1980
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa Convention, 1997)
First and Second Protocols to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict
Geneva Conventions of 1949
Geneva Conventions, Sec. 1
Geneva Conventions, Sec. 1949
ICRC Advisory Service publication
International Committee of the Red Cross
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000)
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Sec. 2000
Ottawa Convention (Mine Ban Treaty), Sec. 1997
Protocols I–V to the Convention on Certain Conventional Weapons (1980)
Protocols to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict
United Nations Charter
What is International Humanitarian Law? (Advisory Service on International Humanitarian Law, ICRC), Sec. 2004