Lecture 2: Origins, Sources and Applicability of IHL

International Humanitarian Law (IHL) is a set of rules that aims to limit the harmful effects of armed conflicts while protecting individuals who are not participating or are no longer participating in hostilities, and it regulates the means and methods of warfare.

IHL aims to minimize suffering during armed conflicts and ensures protection for civilians, wounded soldiers, prisoners of war, and other non-combatants.

The most important sources of IHL are the Geneva Conventions (1949), Additional Protocols (1977, 2005), specific treaties on particular topics, customary international law, and judicial opinions and scholarly interpretations.

The Geneva Conventions are four treaties signed in 1949 that set fundamental rules for humanitarian treatment of wounded soldiers, shipwrecked sailors, prisoners of war, and civilians in wartime.

Additional Protocols are amendments and adaptations made to the original Geneva Conventions in 1977, providing further clarifications and adjustments to modern warfare.

Common Article 3 (CA3) applies to all armed conflicts, regardless of their nature. It ensures basic humane treatment for persons who are not participating in the hostilities, including protection against violence, murder, and torture.

IHL's scope of application is defined by the context of the conflict: International Armed Conflicts (IACs): These refer to conflicts between two or more states. Non-International Armed Conflicts (NIACs): These are conflicts within a state.

IHL regulates the conduct of hostilities by setting rules for the means and methods of warfare. It includes various principles like distinction, proportionality, military necessity, and prohibition of torture, among others.

A conflict between at least two states.

A conflict between a state and one or more non-state armed groups, or between two or more non-state armed groups.

The minimum level of organization required for an armed group to be considered a party to a NIAC. It includes factors like command structure, access to weapons, military planning, etc.

The level of intensity required for a conflict to be considered a NIAC. It includes factors like the number and duration of confrontations, type of weapons used, casualties, etc.

A conflict involving armed groups, but not meeting the criteria for either an IAC or NIAC.

The foundation of international humanitarian law, emphasizing the dignity of every person, regardless of their background.

The core principle underlying international law - protecting human dignity.

The concept that human dignity is a crucial element permeating all areas of international law.

The principle of humanity prohibits causing unnecessary harm during armed conflicts.

It requires respecting and protecting individuals, treating them with dignity and without discrimination.

It applies to all conflicts, including internal ones, and prohibits violence, murder, torture, and inhumane treatment.

Distinction refers to the obligation to differentiate between military objectives and civilian populations and objects.

Indiscriminate attacks targeting civilians or civilian objects are prohibited under IHL.

The international community, through authoritative statements like those from the ICRC, and judicial institutions, all play a role in determining the existence of an armed conflict.

The St. Petersburg Declaration of 1868 states that the only legitimate aim of war is weakening the enemy's military forces. This means focusing on disabling soldiers, not civilians, to minimize harm.

Military necessity allows the use of necessary force to defeat the enemy, but it must be proportionate and not prohibited by the law of war.

The principle of distinction requires combatants to differentiate between military objectives and civilians, and only target military objectives.

Military necessity cannot justify actions prohibited by the law of war, because states have already considered war's needs when creating these prohibitions.

The principle of proportionality demands that the harm caused to civilians and civilian objects must not be excessive in relation to the military advantage gained by attacking a military objective.

Precaution in attack requires taking all feasible precautions to avoid or minimize incidental civilian harm and damage to civilian objects.

The Geneva Conventions (1949) and Additional Protocols (1977) are the most important sources of IHL for International Armed Conflicts (IACs), while Common Article 3 and customary IHL apply to Non-International Armed Conflicts (NIACs).