International Humanitarian
Law
The Law of Armed Conflicts
Associate Professor Gro Nystuen 2007
gro.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
Overview
1. Introduction
2. Main Principles of IHL
3. Applicability and Scope
4. Group work
5. Methods in armed conflict
6. Means in armed conflict
7. Protection (Civilians and
Prisoners of war)
8. Grave breaches/
Individual criminal
responsibility
9. Asymmetrical warfare and
“direct participation in
hostilities”
10. a) Cultural property
b) National implementation
of IHL
11. Group work (The heavy
water sabotage actions)
12. IHL and Human Rights
13. 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:
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Trade
Customs
Outer space
Airspace
Sea
Disarmament
Waterways
Post
Environment
Reindeer fences
International Peace
• What is a State?
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Territory
Population
Control/jurisdiction on territory
Sovereignty
• All states are sovereign
• All states are therefore formally equal
Autonomy and authority
State
State
L+E
State
State
State
State
Individuals / legal persons
State
State
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:
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Soldiers/officers
Others (participants in hostilities)
2) Non-combatants:
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Soldiers hors de combat (Sick, wounded, surrendered,
POWs)
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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 selfdefence 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
Proportionality
Distinction
Military necessity
Main Sources of IHL
• Hague Law (pertaining chiefly to means of war)
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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)
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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