Professional Documents
Culture Documents
A. General aspects
Jus in bello: rules relating to the conduct of war: jus ad bello: rules relating to the legality of the use of
force in peace times
Rights and duties in GC are erga omnes (ICJ, Advisory Opinion: Legality of Wall in Palestine)
All states have the right (or duty? - debated) to react to breaches
Most rules in IHL apply only for international armed conflicts (IAC); only some apply for non-international
armed conflicts (NIAC)
Reasons why there should be no discrimination in the application of IHL (rules should also apply towards
an aggressor): mostly no objective definition of the aggressor possible; humanitarian reasons (people in
aggressor-state should also enjoy the same protection); reciprocity (aggressor-state would not respect IHL
if it would not enjoy the same privileges)
In the Middle Ages: Limited war (only professional fighters are part of the war not civilians); later: Total
war (also civilians become part of the actual war and suffer its consequences)
No diminishing derogation (by agreements or renunciation) from the guarantees in the GC (Art 6,7 GCI-III:
Art 7,8 GC IV)
Sources of law: treaties and customary law (partly identical) list of treaty provisions that also have
customary law status: ICRC Customary Study
Today GCI-IV, HR are also customary law (ICJ, Advisory Opinion: Legality of Wall in
Palestine)
Duty of treaty parties to effectively enforce the Convention and deal with breaches: Artt. 49/50/129/146
GCI-IV
Regulations regarding naval warfare: GCII & San Remo Manual on Int. Law Applicable to Armed
Conflict at Sea
Persons/objects entitled to special protection against attack have to be visibly identifiable to the adverse
belligerent
This is achieved by the usage of emblems (Art 37ff GCI)
Misuse/imitation/commercial use of such emblems are prohibited (Art 44, 53, 54 GCI; Art
37(1) in connection with Art 85(3)(f) API)
Relationship between human rights and IHL
human rights remain applicable even when IHL applies
ICJ: IHL is lex specialis in times of armed conflict
Human rights are interpreted in the light of IHL (e.g. to determine if there is an arbitrary
deprivation of life)
D. Applicability of IHL
1) FOR IAC (Common Art 2 GC) : Armed conflict or declared war or occupation of a territory
without armed resistance
Whenever there is a resort to armed force between States (ICJ, Tadic-Case)
The use of armed force must be intentionally (and not a product of error)
Also consent by the attacked state precludes the application of IHL
Further situation in Art 1(4) API: wars of national liberation (obsolete nowadays, was only
relevant for ex-colonized territories)
Meant to cover cases in which a state occupies territories of a State which is not a
High Contracting Party, or territories with a controversial international status, and to
establish that the population of such territory is fighting against the occupant in the
exercise of their right of self-determination
Also determines the applicability for customary law regarding IAC, Hague regulations and API
Also became customary law (and in that process also became the application criteria for all IHL
rules (even those who specified different application criteria)!!)
effective armed conflict:
objective determination (subjective/formal recognition by the parties as a war not
relevant)
Very low intensity threshold: even minor hostilities are sufficient
declared war:
If hostilities follow a declaration of war armed conflict-requirement becomes
the reference point of the applicability of IHL
If no hostilities follow a declaration of war IHL applies nevertheless from the
declaration onwards
occupation:
2 conditions:
(a) The occupier is able to exercise effective control over a territory that does not
belong to it
(b) Its intervention has not been approved by the legitimate sovereign.
Effective control: the overthrown government is unable to exercise its
authority and the occupying power is in a position to fill that gap by exerting its
own power
2) FOR NIAC (Common Art 3 GC): Rebel forces must display a minimum level of organization and
the armed conflict must present a minimum level of intensity
Armed conflict (for NIAC): Protracted (read: intense) armed violence between governmental
authorities and organized armed groups or between such groups within a State" (ICTY, Tadic
Case)
Higher intensity threshold than for IAC
3) FOR NIAC (Art 1 APII): armed conflict on the territory of a member state between its armed forces
and organized armed groups, which, under responsible command, exercise such control over a part of
its territory as to enable them to carry out sustained and concerted military operations and to
implement AP2
More demanding organization-element
Objective scope of application: IHL applies during any period of armed conflict/declared
war/occupation without resistance
Subjective scope of application: IHL applies once the convention has entered into force for a state
Exception: customary law applies for every state (also for non- parties of the treaties)
Bound parties (IAC): all parties that effectively participate in armed conflicts (by making acts of
war)
Mainly states (more precise: their armed forces), but also international organizations,
non-state entities and individuals (At least under customary law)
Bound parties: (NIAC): see above
Problematic: insurgent movements never ratified the conventions
if a state ratifies the conventions they are applicable in the whole territory and
for all of its inhabitants
Apart from that, everyone is bound by customary law
Protected parties:
- ules on the means of warfare; Hague
Regulations
- Combatants hors de combat (wounded, sick, shipwrecked) GCI,II
- Prisoners of war GCIII
- Civilians GCIV
Underlying rationale: Exclusion of indirect conduct (e.g. general support for the war
effort through preparation or capacity building, such as the production of weapons) AND
conduct that is protected by other human rights standards, (e.g. political support for a
belligerent party or an organized armed group)
Beginning/End of DPH: Measures preparatory to the execution of a specific act of direct
participation in hostilities, as well as the deployment to and the return from the location
of its execution, constitute an integral part of that act.
Preparatory measures:
- must be of an military nature and have a close link to the subsequent
execution
- Preparatory measures aiming to carry out a specific hostile act (+)
- Preparatory measures aiming to establish the general capacity to carry
out unspecified hostile acts (-)
Criticism:
Treaty provision says for such time but Civilians in the first category may be
attacked at all time
Rise of the risk of erroneous targeting (e.g. ex-fighters in rebel group)
Applicable rules:
Human rights law (at least non-derogable human rights)
Article 3 GCI-IV
Applies also in other situations where there are gaps in the protection by IHL
ICJ - Nicaragua Case: minimum standard of protection und which no
belligerent shall ever fall
APII (develops the protections in Art 3 GCI-IV)
Extended principle of humane treatment (Art 4 APII)
Extended version of rights in Art 3 GCI-IV (Artt. 7-12 APII)
Reproduction of the provisions in API (Artt 48-60 API) regarding protection
of civilians (Artt 13-18 APII)
Customary law
I. Regular members of the armed forces (Regular combatant status) Art 13(1) GCI, Art 4(A)(1) GCIII, Art
43 API
All persons incorporated into the army of a state that are engaged in a mission, that sees them
actively taking part in hostilities (actual fighting is not necessary)
Medical personal/chaplains do not have a combat mission and therefor dont fall under this
category (covered by Art 33 GCIII)
Militias/volunteer corps/police forces that become incorporated into the regular army by
this has to be given to
the other party
The non-recognition of one state by the other is irrelevant for the combatant status (Art 13(3)
GCI, Art 4(A)(3) GCIII)
Civilian status is restored once a member of the armed forces disengages from active duty and
re-integrates into civilian life
II. Civilians participating in a leve en masse (Regular combatant status) Art 13(6) GCI, Art 4(A)(6)
GCIII, Art 43 API
Civilians that spontaneously take up arms to defend their country for a short period of time (at a
time when there is no current occupation by the other party)
They must distinguish themselves from a non-combatant civilian
III. Resistance movements and militias not incorporated into the regular army (Regular combatant status)
Art 13(1),(2) GCI, Art 4(A)(2) GCIII, Art 43 API
Very strict requirements
If the requirements are not met: combatant is not entitled to POW status if captured (if the
relevant state has only signed GCI-IV)
If state also has signed API:
Art 44(4) API: detaining power shall grant equivalent protection to such
combatants
Art 75 API (fundamental guarantees) in any case
irregular combatant
1) Militia must be linked to a party of the conflict (must fight for the same cause; not private goals)
2) Commanded by a person responsible for his subordinates
3) Having a fixed distinctive sign recognizable at a distance
Exception for periods of active combat: Art 44(3) API
4) Carrying arms openly
5) Conducting their operations in accordance with the laws and customs of war.
Non-compliance with the rules of IHL does not deprive a combatant of his POW-rights (Art
44(2) API)
H. Protection of Civilians
Protection of civilians outside of zones of active hostilities (GCIV)
Protection of civilians during active phases of combat (Hague regulations, API)
Protection is lost, when a civilian engages in armed hostilities (Art 51(3) API, Art 13(3) APII)
Also reflects customary law
Consequences of being a civilian
May not be made the object of attack Art 51(2) API
No combatant immunity against criminal prosecution for any participation in hostilities
(domestic law; not on basis of ICL!)
May not be detained (interned) arbitrarily Art 79 GIV
Only if Civilian poses a serious threat to security/if its absolutely necessary (Art
27(4), 41, 42, 78 GCIV)
Interned person can request a review of the detention decision (Art 41, 78 GCIV)
Afterwards periodic review on a 6-monthly basis
Detention has to cease immediately, when the reason for detention no longer exist (Art
132 GCIV, Art 74(3) API) OR as soon as possible after the close of hostilities (Art 46,
133(1) GCIV)
Special categories of persons: medical/religious personnel:
- Permanent Medical personnel:
May not be made object of attack (Art 24 GCI)
Identifiable by RC emblem (Art 40 GCI)
In hands of enemy retention only if necessary for POWs (Art 28 GCI jo. Art 33 GCIII)
- Auxiliary Medical personnel:
May not be made object of attack when carrying out their duties (Art 25 GCI)
Identifiable by RC emblem in miniature (Art 41 GCI)
In hands of enemy: POW status (Art 29 GCI)
I. Targeting and means of attack (Art 48-58 API, Rule 1-24 ICRC Customary Study)
1) Target Selection
Only objects that are military objective are legitimate targets (no civilian objects) Art 52(1) API
Definition [military objective]: Art 52(2) API (also reflects customary law)
In so far as objects are concerned, military objectives are limited to those [a] objects which by
their nature, location, purpose or use make an effective contribution to military action and
[b] whose total or partial destruction, capture or neutralization, in the circumstances ruling
at the time, offers a definite military advantage.
Implies also the notion to prevent unnecessary destruction (explicit codification in Art 23(g)
HR)
Effective contribution to military action: relates to military action in general; no direct
connection with specific combat operation needed
Nature: refers to the intrinsic character of the object
Purpose: refers to the belligerents intended future use of an object (possible future use is not
sufficient)
Use: current function
Definite military advantage: concrete and perceptible rather than hypothetical and
speculative
Debated: whether the definite military advantage must accrue from a single attack or if
a mere contribution to obtaining a military advantage is sufficient
In case of doubt: Art 52(3) API (rebuttable presumption) reasonable belief that target is military
objective is required (ICTY, Galic-Case)
If party fails to separate civilian and military objects: possible breach of the obligation to take
precaution against the effects of a attack (Art 58 API) for cases when a party arbitrarily uses civilian
objects to launch military attacks
Art. 50(3) AP I protection of population in spite of the presence of non-civilians
Attacking party has to do everything feasible to verify that the intended target is military object (Art
57(2)(a)(i) API) countries possessing superior intelligence capabilities have to use such technology
if available in that special situation
Special case: Dual use targets (targets that serve both civilian and military purposes (e.g. power plant)
a) Indiscriminate attacks
Definition: Art 51(4) API
Those attacks are prohibited per se
Specific prohibitions in Art 51(5) API (here, not the number of casualties is relevant,
but the mind-set of the attacker)
Special rules regarding the use of (voluntary) human shields (Art 51(7) API, Art 28
GCIV; also reflects customary law)
b) Precautionary measures
Exhaustive list in Art 57 API
Goal: minimization of civilian casualties
Every mentioned measure contains a subjective element to implement an ex ante-
assessment
General limitation: only practicable and practically possible precautions have to be
taken into account
Precautionary Measures that have to be taken by a belligerent regarding its own
territory: Art 58 API
c) Principle of minimum feasible damage (Art 57(2)(a)(ii) API)
If several means or methods yield the same military advantage, the one that causes the
least collateral damage, has to be chosen
All relevant factors and circumstances (ex ante!) have to be taken into account
Important factors in this regard (inter alia!!!): method of ware and the timing
of the attack
Underlying limitations: feasibility and availability
Countries with more advanced warfare equipment available have to use it
d) Proportionality
There must be an acceptable relation between the legitimate destructive effect and the
undesirable collateral effects of an attack
Debated: customary nature of the principle of proportionality
Art 35 API: the right of the Parties to the conflict to choose methods and means of warfare is not
unlimited
Art 36 API: Restrictions regarding the development of weapons
Main principles
Prohibition of weapons and means rendering the death inevitable
Underlying thought: in war it is sufficient to render an enemy hors de combat to defeat
him and death is not necessary to achieve this less destructive alternative is preferred
Prohibition of weapons that cause superfluous injury or unnecessary suffering (Art 35(2)
API)
Also customary law
Suffering is unnecessary when, in the circumstances, another practicable militarily
means, causing less suffering to the adverse combatants, could have been used to place
the adversary hors de combat
E.g.: projectiles which flatten or fragment themselves when entering the human body
Prohibition of Weapons that have an indiscriminate effect (Art 48 API)
Also customary law
Para. 4: Definition of indiscriminate attacks
Specific prohibitions of certain weapon types (see, inter alia, Rule: 72-86 ICRC Customary Study)
Nuclear weapons have a special status; the question of their legality simply was excluded in the
process of drawing up API by request of the nuclear powers
ICJ, Nuclear Weapons Advisory opinion: the threat or use of nuclear weapons would
generally be contrary to the rules of international law [] the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defense, in which the very survival of the State would be
at stake.
J. Belligerent Occupation
Must be distinguished from peaceful occupation (occupation is the result of an agreement that is freely
entered into between the territorial and another state)
But peaceful occupation can turn into a belligerent one and vice versa
Local government must be autonomous
Relevant provisions: Artt 42-56 HR (mainly regulations regarding administrative rights and duties) ;
Artt 47-78 GCIV (mainly regulations regarding protection of the civilian protection)
Definition [occupation]: Art 42 HR, Art 43 GCIV Reflects also customary law
Occupying Power must obtain effective control/authority
Lack of consent to the presence of enemy armed forces by the relevant state
Effective control: [1] the overthrown government is de facto unable to exercise its authority
in that area and [2] the occupying power is de facto in a position to fill that gap by exerting its
own power
Only absence of governmental authority is required, not anarchy
If foreign power cannot exercise authority: No occupation & therefor those rules dont apply
If foreign power is not willing to exercise power: Rules on occupation apply
nevertheless (Reason: Safety and protection of civilians shall be re-established)
Problematic: Unwillingness due to lack of resources
Main features:
Maintenance, as far as possible, of the status quo in the occupied territory (Art 43 HR)
Underlying rationale: Situation of occupation is only provisional and temporary
Occupying power should modify the status of the territory as sparingly as possible and
change as few of the local laws and institutions as practicable
Local laws remain in force (Exception: for the security of the occupying power) and
Local courts remain competent (Art 43 HR, Art 64 GCIV)
Specific provisions on criminal law (include human rights guarantees): Art 65-78
GCIV
Allowed changes:
- Laws contrary to human rights/IHL shall be abolished
- Adoption of laws that ensure the security of the occupying forces and
establishment of tribunals to punish violations of these rules (Art 64(2), 66
GCIV)
Duty to protect law and order in the occupied territory, as well as for ensuring public
hygiene and health, relief, food and medical supplies (Art 43 HR; Art 55-61 GCIV)
Annexation of occupied territory prohibited under Art 2(4) UN Charter
Also: annexation cannot deprive civilians of its protections under IHL (Art 47
GCIV)
Prohibition of deportations and transfers of population (Art 49 GCIV)
Exceptions: security of population: imperative military necessity
Non-nationals have the right to leave/repatriation (Art 48 GCIV)
Role of the occupying power:
- Administrator & usufruct (Art 55 HR)
- allowed to collect taxes (Art 48-51 HR)
Respect for individual rights of the civilian population
In an occupation situation: human rights and IHL apply both (overlapping) (ICJ,
Advisory Opinion: Legality of Wall in Palestine)
Provisions: Art 49-78 GCIV
Especially property rights:
- No confiscation: Art 46 HR
- No pillage: Srt 47 HR
- No destruction unless absolutely necessary: 53 GC IV
- Protection of cultural heritage: Art 53 API
- But: proportionate requisitions for the occupying army allowed (Art 52 HR)
Beginning: when a hostile army penetrates into territory under the sovereignty of another state, or at
least not under the sovereignty of its own state, and begins to exercise effective and exclusive control
over it (Art 42 HR, also customary law)
End: when the hostile armed forces cease to control the occupied country
Can be by formal announcement; treaty, withdrawal of troops from territory; decision of an
international institution
Art 6(3) GCIV: some provisions of the Convention will cease to apply one year after the general close
of military operations
But superseded by customary law (see also Art 3(b) API): cessation of applicability of all GC
provisions not until the end of belligerent occupation
Regulated by GCIII
Once members of the armed forces of belligerents, other lawful combatants and persons entitled by analogy
to a prisoner of war status (religious and medical personnel) have been captured, the enjoy POW status
(Art 4, 33 GCIII)
Structure:
General Rules (Art 12-16 GCIII)
Art 13: absolutely fundamental duty of humane treatment
Art 14: respect for the integrity of the person and their honour
Art 15: duty to maintain and provide medical care to the prisoners free of
charge
Art 16: duty to treat detainees equally, excepting well-founded distinctions
such as rank, sex or professional qualifications.
Rules as to the beginning of captivity (Art 17-20 GCIII)
Art 17: the detaining power can question the prisoner, but that he or she is
only obliged to respond to certain points. Apart from that prisoner is free to
refuse to answer.
If prisoner refuses to answer to allowed questions: may be restricted
in privileges
Article not applicable in regard to criminal proceedings about crimes
that are not covered by the combatant immunity (E.g. war crimes)
Art 18, 19: Evacuation of POW from combat area
Rules as to the internment of prisoners of war (Art 21-48 GCIII)
Topics: security; quarters; food and clothing;13 hygiene and medical
attention; religious, intellectual and physical activities; discipline; respect due to
the rank of prisoners of war; and transfer of prisoners of war after their arrival in
camp
Rules on labour of prisoners of war (Art 4957 GCIII)
Art 49: General Rule
Art 50: Explicitly allowed labour
Art 52: Explicitly prohibited labour
Rules on financial resources of prisoners of war (Art 5868 GCIII)
Objective: allow prisoners to purchase the services or commodities they need
whilst in detention
Art 61: duty to accept payment of sums of money to the prisoners, even if the
payment comes from an opposing belligerent power
Rules on the relations of the prisoners of war with the exterior (Art 6977 GCIII)
Topics: Sending of a capture card to the family of the prisoner,
correspondence, exemptions from postal charges, sending of relief shipments
Rules on relations between prisoners of war and the authorities (Art 78108 GCIII)
Topics: representation of prisoners in their dealings with the detaining power;
penal and disciplinary sanctions that may be imposed on prisoners.
Art 82: Right to prosecute POW for war crimes
Art 86, 99ff: Rights to due process & Fair Trail
Art 85: POW keeps his status/rights after conviction
Art 100f: Special restrictions regarding the death penalty
Rules as to the termination of captivity (Art 109121 GCIII)
Art 111 the repatriation of seriously wounded or sick prisoners during the
continuing hostilities (since they are no longer able to fight Art 109ff)
Art 118f: Repatriation of prisoners at the general close of hostilities
Objective: immediate release & prevention of procrastination in that
matter (in practice problematic)
Modification of application in practice since not all POW want to
return to home country (E.g. due to fear of prosecution) duty for
immediate release only applies if POW consents
Art 120f: Procedure in case a POW dies in detention camp
L. Enforcement of IHL
Special agreements between the conflict parties can be made that increase the amount of applicable
rules (in NIAC Art 3(4) GCI-IV) respectively render a certain regime of rules applicable in situations
where the nature of the conflict is unclear
Art 6/6/6/7 GCI-IV
Only applies inter partes and for the conflict specified in the agreement
Agreements may not adversely affect the situation of protected persons; no lower standard than
the one stipulated in GCI-IV may the agreed on
Reprisals
Definition: a violation of IHL committed in response to a violation of the LOAC by the other
party, in order to induce that other party to comply with the law.
Legality is highly debated (especially in NIAC)
Not generally prohibited, but only many special prohibitions regarding the target
Not against:
- Wounded, sick shipwrecked combatants and other protected persons under
GCI,II (Art 46 GCI, Art 13(3) GCII) and those covered by Part II of API (Art20
API)
- POW (Art 13(3) GCIII)
- Civilians in the hands of the enemy belligerent party (Art 33(3) GCIV)
- Civilians (Art 51(6) API) and civilian objects (Art 52(1) API) during hostilities
- Historic monuments, works of art or places of worship which constitute the
cultural or spiritual heritage of peoples (Art 53(c) API)
- Natural environment (Art 55(2) API
- Works and installations containing dangerous forces (Art 56(4) API)
Conditions for the execution of reprisals (ICTY, Martic-Case)
a) The purpose of the reprisals may only be to secure future law-compliance, not, for
example, to punish for a violation of the law
b) Must be a measure of last resort (ultima ratio); no other, less intrusive, means for securing
law-compliance must be available
c) Must be proportionate to the wrong suffered
d) The decision to take reprisals must be made at the highest level of government
e) Must cease as soon as the adversary complies with the law.
Protecting Powers
States in dispute can nominate a protecting power (independent third party state) to mediate in
their dispute and help the to overcome their differences (all involved states have to accept
nomination)
Functions of protecting power (Art 8/8/8/9 GCI-IV): link between parties; exercise of protection
and control
Almost never used
Fact-Finding Commission (Art 90 API)
Impartial organ to investigate alleged breaches of IHL
Never has been established in a case
Criminal prosecution
Universal jurisdiction in regard to war crimes
Requirement for a violation of IHL to be criminally punishable (ICTY, Tadic-Case)
(i) The violation must constitute an infringement of a rule of IHL
(ii) The rule must be customary in nature or the relevant treaty must be applicable
(iii) The violation must be serious (must constitute a breach of a rule protecting
important values and the breach must involve grave consequences for the victim)
(iv) The violation of the rule must entail individual criminal responsibility
Combatants that get orders contrary to IHL have to refuse to obey otherwise: criminal
responsibility (No I only acted upon superior orders-defense)
Special status of Commander in armed conflict
Duties Art 87 API (in case of non-compliance: criminal prosecution for war crimes)
Criminal responsibility of a commander: Art 28 Rome Statute
Criminally responsible if he or she knew, or should have known that subordinates
were planning to violate or have violated IHL without doing anything to prevent or to
suppress such action
should have known: threshold/ requirements in Art 86(2) API
No obligation to search for information regarding the conduct of subordinates
Art 91 API
Party that committed a breach is liable for compensation
A state is responsible for the actions committed by its armed forces
M. ICRC
constituted as an association under Swiss private law and also a subject of public international law
Mission Statement: Art 5 Statutes of the International of the Red Cross/Red Crescent Movement
7 principles (in Preamble of Statutes of the International of the Red Cross/Red Crescent Movement
Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity, Universality
Role:
intermediary between the parties to the conflict
exercise of the right of humanitarian initiative in order to improve the situation of the protected
persons beyond what is foreseen in the conventions (Art 9/9/9/10 GCI-IV, Art 81 API)
E.g. ICRC may off its services to the parties in NIAC (Art 3(3) GCI-IV)
Limited to proposals
No proposals for political settlements
duty to visit and interview without witness prisoners of war and detained civilians (Art 143 GCIII)
Rationale: Protection of detainees
Also Art 126 GCIII
Not in NIAC
duty to provide relief to protected civilians, POWs and to the population of occupied territories
(Art 8 GCIII)
duty to search for missing persons, to trace prisoners of war and civilians and to forward family
messages (Art 140 GCIII, Art 33 API)
duty to use the good offices of the ICRC to facilitate the creation of hospital and safety zones, as
well as neutralized zones (Art 14,15 GCI)
Guardian of the Conventions
Contributing to development/ interpretation of IHL
Duty to inform about IHL in peace time (Art 47/48/127/144 GCI-IV, Art 19 APII)