Situating International Humanitarian Law (IHL)

ATHA Specialized Training on

International Humanitarian Law

May 31, 2010Stockholm, Sweden

Defining IHL

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflicts.

It protects persons who are not, or are no longer, participating in hostilities, and restricts the means and methods of warfare.

IHL aims to balance, during situations of armed conflict, humanitarian concerns and military necessity

“[t]he principle of humanity stands out on its own in the doctrine of the Red Cross, and all other principles hang from it.” (Pictet, 1956)

“Humanity — The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavors - in its international and national capacity - to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, co-operation and lasting peace amongst all peoples.” (Internat’l Conf. of the Red Cross, Vienna, 1965)

“…elementary considerations of humanity, even more exacting in peace than in war…” (Corfu Channel, Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947‑1948). 

“These fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law…” (Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I)). 

Humanity and IHL

Origins of IHL

Universal values of humanity (in the midst of combat)

Military customs and usage in various cultures

Monopoly of force by the state

“The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.” (ICJ, 1996)

ICJ Nuclear Weapons Advisory Opinion

Sources of International Law

A normative system which is consent-based:

Treaty

Custom : requires state practice and « opinio juris »

General Principles of Law

Soft law? = not strictly legal but can be politically relevant

IHL and IHRL

Distinct International humanitarian law and

international human rights law are two separate bodies of law

Complementary Though they are not similar, IHL and

IHRL are mutually reinforcing. Both regulate the power of the State.

Different mechanisms Both seek to protect the individual,

though they do so in different circumstances and in different ways

Obligations

IHL: State and non-state actors during a conflict(no derogations)

Conduct of hostilities Combatant and prisoner of war status Occupation law

IHRL: State at all times (some rights derogable)

In situations of public emergency (freedom of the press, right to assembly,…)

Essential human rights are non-derogable: right to life, prohibition of torture, prohibition of slavery, due process

Challenges to Convergence in Practice

Lex specialis

Extraterritorial application of human rights law. Standards of (i) “effective control” over territory; (ii) power / authority over individuals

Extent of individual right, if any, to reparation or remedy

Indivisibility of all human rights versus differentiated approach as per which rights apply and to what extent they apply (i.e. also positive obligations, depending upon degree of control exercised?) = “all or nothing” versus “à la carte” debate

Tools for Practitioners

Increasing legal argumentation relying on both fields of law (e.g., interpreting Common Art III with reference to more detailed IHRL provisions)

Utilizing IHRL mechanisms for IHL violations (providing forum for individual complaints; utilizing state party reports, different posture towards obligations)

International criminal law (increasingly introducing legal arguments that draw upon both legal regimes)

Developing tools and tactics that emphasize convergence