International Humanitarian Law

The Law of Armed Conflicts

Associate Professor Gro Nystuen 2007gro.nystuen@nchr.uio.no

Practical information

• JUR5739 International Humanitarian Law (The Law of Armed Conflict):

www.uio.no/studier/emner/jus/jus/JUR5730/index.xml

Autumn 2007:• Time and place (teaching) (Corr.:11 Oct.: 14.15 – 16.00)• Syllabus (achievement requirements)• Course outline• Reading Assignment

Lecture 1

• Introduction to IHL course:

– Overview of the course– Terminology– International law– Jus ad bellum and jus in bello– Brief history of IHL– Main sources of IHL

Overview1. Introduction2. Main Principles of IHL3. Applicability and Scope4. Group work5. Methods in armed conflict6. Means in armed conflict7. Protection (Civilians and

Prisoners of war)8. Grave breaches/

Individual criminal responsibility

9. Asymmetrical warfare and “direct participation in hostilities”

10. a) Cultural propertyb) National implementation

of IHL11. Group work (The heavy

water sabotage actions)12. IHL and Human Rights13. Armed conflicts and the

“war on terror”14. Peace Support

Operations: which rules apply?

15. Group work/exam preparation

Introduction

Terminology:• International Humanitarian Law (IHL)

• Law of Armed Conflict (LOAC)

• International Human Rights Law

• International Refugee Law

• International Criminal Law

International Law

• The law that regulates the relationship between States

• States are the core subjects of international law - - states have rights and obligations under international law

• International organisations can be subjects of international law

• Individuals can to a certain extent be subjects under international law

• Examples of International law areas:

• Trade • Customs• Outer space• Airspace • Sea • Disarmament• Waterways• Post• Environment• Reindeer fences• International Peace

• What is a State?

• Territory

• Population

• Control/jurisdiction on territory

• Sovereignty

• All states are sovereign

• All states are therefore formally equal

Autonomy and authority

State

State

State

StateState

State

State

State

L+E

Individuals / legal persons

Sources of international law

• Point of departure: states must agree:

Primary Sources:• Treaties• Customary law• General Principles• Secondary Sources:• Jurisprudence• Literature(Statute of the International Court of Justice art.38)

• Article 38 of the ICJ Statute:• 1. The Court, whose function is to decide in accordance

with international law such disputes as are submitted to it, shall apply:

• a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

• b. international custom, as evidence of a general practice accepted as law;

• c. the general principles of law recognized by civilized nations;

• d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

• Vienna Convention on the Law of Treaties:• Article 31 General rule of interpretation:• 1. A treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

• ……• Article 32 Supplementary means of interpretation• Recourse may be had to supplementary means of

interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

• (a) leaves the meaning ambiguous or obscure; or • (b) leads to a result which is manifestly absurd or

unreasonable.

The Content of IHL is PROTECTION of

1) Combatants:- Soldiers/officers- Others (participants in hostilities)

2) Non-combatants:- Soldiers hors de combat (Sick, wounded, surrendered,

POWs)

- Civilians

Jus ad bellum and jus in bello

• Jus ad bellum are the international rules pertaining to to which extent the use of military force against another state is allowed.

• Jus in bello are the international rules pertaining to how armed conflict must be conducted.

Jus ad bellum

The Prohibition:

• The UN Charter Article 2 (4): The use or threat of use of force against states is prohibited

The only exceptions:

• The UN Charter Articles 39 – 41 and the right of self defence (Article 51)

Article 2 (4) is jus cogens

• Jus cogens: peremptory norm of general international law:

• “..a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted…” The Vienna Convention on the Law of Treaties (VCLT) Article 53

• The Prohibition against the use of force

Article 2 (4)

• All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

CHAPTER VII ACTION WITH RESPECT TO THREATS TO THE PEACE,

BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39• The Security Council shall determine the

existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41• The Security Council may decide what

measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42• Should the Security Council consider that

measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Article 51

• Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace

The “lex superior” nature of the UN Charter

Article 103• In the event of a conflict between the obligations

of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Article 2 (6)• The Organization shall ensure that states which are not

Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

Brief History of IHL

• Many examples of humanitarian rules of warfare throughout history and many examples of the opposite

• The concept of “just war” (Roman law, Thomas Aquinas, etc..)

• Chivalry (the middle ages)• Mercenaries • Hugo Grotius (1625)• The age of enlightenment (Rousseau)• The battle of Solferino (1859)• The first Geneva Convention 1864• The Lieber Code• Hague Law and Geneva Law

Main principles of IHL

HUMANITY

Distinction

Military necessity

Proportionality

Main Sources of IHL• Hague Law (pertaining chiefly to means of war)

• The Petersburg Declaration 1868• Hague Regulations of 1899 and 1907• Gas protocol of 1925• NPT (non-proliferation of nuclear weapons) 1968 • Biological weapons 1972• ENMOD convention 1977• Convention on inhuman weapons (CCW) 1980• Chemical weapons 1993• Anti Personnel Mines 1997

• Geneva Law (pertaining chiefly to protection)

• The four Geneva Conventions (1949):• 1: Wounded and sick soldiers on land• 2: Wounded and sick soldiers on sea• 3: Prisoners of war• 4: Protection of civilians and occupation

• The two Additional Protocols (1977):

Additional rules on means and protection• 1) In international armed conflicts• 2) In non-international armed conflicts

International Customary Law

• Article 38 (1) b ICJ Statutes: “..international custom, as evidence of a general practice accepted as law;”

• The ICRC Study on International Humanitarian Law was Commissioned by State Parties to the Geneva Conventions in 1995

• Three volumes in 2005:– 1) The rules (161 rules)– 2 and 3) State practice