What is IHL?

International Humanitarian Law as a branch of Public International Law
International humanitarian law (IHL) regulates relations between States, international organizations and other subjects of international law during armed conflicts. It is a branch of public international law (PIL) that consists of rules that, in timesaim at protecting persons who are not or are no longer directly participating in the hostilities, as well as at restricting means and methods of warfare in times of armed conflicts.1 Being a separate body of international law, IHL closely interacts with other branches of PIL, such as International Human Rights Law, International Law of the Use of Force (jus ad bellum), International Refugee law, International Criminal Law, Disarmament Law, International Environmental Law. The scope of correlation between the IHL and other PIL branches largely depends on the situation and may differ from scenario to scenario. Unlike jus ad bellum, which mostly refers to the prohibition against the use of force amongst States and the exceptions to it (namely self-defense and UN authorization for the use of force) set out in the United Nations Charter of 1945, IHL applies to all the parties of an armed conflict irrespective of the reasons for the conflict, party affiliation, etc.

The scope of IHL
The scope of applicability of IHL can be described by three criteria: personal scope of application, material scope of application and temporal scope of application.
When speakingabout the personal scope of application of IHL, one should answer the following question: to which subjects do IHL apply? In fact, IHL applies to States, Non-state armed groups and individuals. By saying individuals civilians and other protected persons and combatants are considered.
Material scope of application of IHL mostly covers and is specifically designed to govern armed conflicts. As such, it contains detailed provisions regulating the means and methods of warfare and the protection of persons and objects having fallen into the power of a belligerent party.2 Accordingly, it is also named as the law of armed conflicts or jus in bello. International humanitarian lawis called to balance between humanitarian concerns and considerations of military necessity. In the words of the Geneva Conventions, the law of international armed conflicts applies to 'all cases of declared war or of any other armed conflict which may arise between two or more of the High contracting Parties, even if the state of war is not recognize by one of them.’3 The ICRC Commentary further explains that ‘any difference arising between two states and leading to the intervention of members of the armed forces is an armed conflict.4 An additional provision is envisaged in Article 1(4) of AP I (1977), according to which armed conflicts ‘in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination’ should also be qualified as international armed conflicts, triggering the application of IHL rules.5IHL governing international armed conflicts also applies “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”6
As to the temporal scope of application, IHL is applicable mostly during armed conflicts: international and non-international. Thus, when analyzing the temporal scope of application of IHL one should understand when the armed conflict begins and ends. For this it is important to define the term «armed conflict». The determination of the existence of an international armed conflict was outlined by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadić Jurisdiction Decision: ‘an armed conflict exists whenever there is a resort to armed force between States’.7As such, any time there is ‘any difference arising between two states and leading to the intervention of members of the armed forces’8, an international armed conflict will be deemed to exist.9 As added by Additional Protocol I to the Geneva Conventions, wars “‘in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination” are also considered to be an international armed conflict.It is way more difficult to determine the beginning of a non-international armed conflict. In the Tadić case it has been stated that a non-international armed conflict exists whenever there is ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’10. The Court, thus, sets out two elements to this test – the intensity of the hostilities, and the level of organization of the groups involved.11
As a general rule, in both international and non-international armed conflicts, IHL will cease to apply when there is a ‘general close of military operations’.12This concept of a close of military operations is understood to mean when there has been the adoption of a ‘general or definitive armistice, of a general capitulation by a belligerent, or at the point in time that witnesses any form of debellatio [total defeat]’.13
It is important to also note, that certain regulations of IHL are also applicable during peacetime: For example, States have a duty to take a number of legal and practical measures – both in peacetime and in armed conflict situations – aimed at ensuring full compliance with IHL, including:

  • translating IHL treaties;
  • preventing and punishing war crimes, through the enactment of penal legislation;
  • protecting the red cross and red crescent emblems;  applying fundamental and judicial guarantees;
  • disseminating IHL;
  • training personnel qualified in IHL and appointing legal advisers to the armed forces.14

 

Main Sources
Sources of IHL can be mainly expressed in two groups: treaty sources and customary law.
Among the most significant treaty sources of IHL are:

  • The four Geneva Conventions of 1949 (GC I, II, III and IV), which have been universally ratified, constitute the core treaties of IHL and mostly reflect international customary rules.
  • The Conventions have been supplemented by the Additional Protocols I and II of 1977 (AP I and AP II), whichregulate international and non-international armed conflicts, respectively, as well as by the Additional Protocol III of 2005 (AP III) concerning the additional distinctive emblem (the red crystal).
  • Other international treaties, limiting or prohibiting the use of certain weapons and military tactics, and protecting certain categories of person and objects from the effects of hostilities. These treaties include: 
  • the 1925 Protocol for theProhibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare 
  • the 1954 Convention for theProtection of Cultural Property in the Event of Armed Conflict and its two Protocols of 1954 and 1999 
  • the 1972 Convention on theProhibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 
  • the 1976 Convention on theProhibition of Military or any Other Hostile Use of Environmental Modification Techniques 
  • the 1980 Convention onProhibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW) and its five Protocols of 1980 (I, II and III), 1995 (IV), and 2003 (V) 
  • the 1993 Convention on theProhibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction
  • the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (APMBC)  the 2000 Optional Protocol tothe Convention on the Rights of the Child on the involvement of children in armed conflict 
  • the 2006 InternationalConvention for the Protection of All Persons from Enforced Disappearance 2 More information on these customary rules can be found in the two-volume ICRC study, Customary International 
  • the 2008 Convention onCluster Munitions (CCM).

Many provisions of the treaties mentioned above are now thought to reflect customary IHL and are, consequently, binding on all States and all parties to a conflict15

When speaking about IHL, one is having doubts about its application very often. In order to review the debate about its application and to read some success stories read the article at the link: http://blogs.icrc.org/law-and-policy/2017/11/24/changing-the-narrative-on-international-humanitarian-law/

1International Humanitarian Law: Answers to your Questions - ref. 0703, can be found at: file:///C:/Users/User/Downloads/0703_002_IHL-answers_LR.pdf/

2International Humanitarian Law: A Comprehensive Introduction - ref. 423, can be found at:
file:///C:/Users/User/Downloads/4231_002-IHL_WEB_13.pdf

3 Common Article 2 Geneva Conventions of 1949

4 J. |Pictet (ed.), Commentary to the First Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the field (ICRC 1952), 32

5The Protocols Additional to the Geneva Conventions of 12 August 1949 - ref. 032

6 Common Article 2 clause 2 of the Geneva Conventions of 1949

7ICTY, Prosecutor v DuskoTadić, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, at para 70

8 Jean Pictet (ed), Commentary to the First Geneva convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field (ICRC, 1952), at 32.

9The Temporal and Geographic Reach of International Humanitarian Law: Oxford Guide to International Humanitarian Law, B. Saul, D. Akande, eds, Oxford University Press, UK, Forthcoming, 2018: Sydney Law School Research Paper No. 16/42: can be found at file:///C:/Users/User/Downloads/SSRN-id2785420.pdf

10Supra mote 7, at para 70.

11Supra note 9

12See Article 6(2), GCIV, and Article 3(b), API. See also Article 2(2) of Protocol II, which refers to the ‘end of the conflict’

13 Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conflicts (Hart, Oxford, 2008), at 102. See also YoramDinstein, War, Aggression and Self-Defence (5th edn, CUP, 2011), at 34-51.

14 ICRC, Advisory Service on international humanitarian law: International humanitarian law and international human rights law, Similarities and differences, ref. 01/2003: can be found at https://www.icrc.org/eng/assets/files/other/ihl_and_ihrl.pdf

15Supra note 14