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Summary International Humanitarian Law
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Summary of the mandatory literature of International Humanitarian Law.
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International Humanitarian Law1 Historical Development of International Humanitarian Law 3
1 Introduction 3
2 Henri Dunant and the Battle of Solferino 3
3 The 1864 Geneva Convention 4
4 The Lieber Code 1863 4
5 The 1868 St Petersburg Declaration 4
6 The 1868 Additional Articles 4
7 The 1899 and 1907 Hague Conventions 5
8 The 1949 Geneva Conventions 5
9 The 1977 Additional Protocols 5
11 The Development of International Criminal Law: the ICTY and ICTR, the ICC, and the
Hybrid and Ad Hoc Courts and Tribunals 6
a. The International Criminal Court 7
b. The Ad Hoc Criminal Tribunals for the Former Yugoslavia and Rwanda 7
c. Hybrid and Ad Hoc Courts and Tribunals 8
2 The Contemporary Legal Basis of International Humanitarian Law and Its
Fundamental Principles 8
1 Introduction 8
2 The Law of Armed Conflict: Purpose, Concepts, Scope, Application 8
a. The separation of Jus Ad Bellum and Jus in Bello 9
b. Hague Law and Geneva Law 9
c. Terminology: Wars vs. Armed Conflict, Law of Armed Conflict vs IHL 9
d. Scope and Application of the Law of Armed Conflict 9
3 Sources of the Law of Armed Conflict 10
a. Treaties 11
b. Custom 11
c. Other Sources: Soft Law 11
4 The Fundamental Principles of the Law of Armed Conflict 12
a. The Principle of Distinction 12
i. The Principle of Discrimination (Prohibition on Indiscriminate Attacks) 12
b. The Principle of Military Necessity 13
c. The Principle of Proportionality 13
d. The Prohibition on Causing Unnecessary Suffering and Superfluous Injury 13
e. The Principle of Neutrality 13
f. The Principle of Humanity 14
3 Types of Armed Conflict 14
1 Introduction 14
2 International Armed Conflicts 15
a. Common Article 2 Article Conflicts 15
i. ‘War’ vs ‘Armed Conflict’ 15
ii. What is an ‘Armed Conflict'? 15
, iii. Occupation 16
b. Wars of National Liberation 16
3 Non-International Armed Conflicts 17
a. Common Article 3 Armed Conflicts 17
i. Intensity and Organisation 18
ii. Geographical Field of Application 19
b. Additional Protocol II Armed Conflicts 20
i. Material Field of Application 20
4 Internationalised and ‘Transnational’ Armed Conflicts 21
a. Internationalised Armed Conflicts 21
i. Military Intervention by a Foreign state in a NIAC 21
ii. One of the Parties is Acting on Behalf of a Foreign State 23
b. ‘Transnational’ Armed Conflicts 24
c. ‘De-Internationalised’ Armed Conflicts 27
4 Individual Status in Armed Conflict: Combatants, Non-Combatants, Direct
Participation in Hostilities, Prisoners of War and Detention in Non-International Armed
Conflict 28
1 Introduction 28
2 Combatants Status: Criteria, Privilege and Responsibilities 28
3 The Current Law Regarding Combatant Status 29
a. Members of the Armed Forces 29
b. Partisan and Resistance Fighters 29
i. Being Commanded by a Person Responsible for Their Subordinates 30
ii. Having a Fixed Distinctive Sign 30
iii. Carrying Arms Openly 30
iv. Obeying the Laws of War 30
c. National Liberation and Guerrilla Fighters under Protocol I 30
d. Levée en Masse 31
e. Participants in Non-International Armed Conflicts 31
4 Non-Combatants Entitled to POW Status and Treatment 31
5 Irregular in Hostilities Not Entitled to Combatant Status 32
a. Spies 32
b. Mercenaries 32
c. ‘Unlawful’ Combatants 33
d. Private Military and Security Contractors 34
e. Civilians Taking Direct Part in Hostilities 35
6 Prisoner of War Status 36
a. Determining POW Status 36
b. Treatment of POWs 37
i. Rights of POWs 37
ii. Rules on Conditions of Captivity 37
iii. Rules on Penal and Disciplinary Proceedings 37
iv Obligations for Detaining Authorities Regarding Transmission of Information,
Monitoring by Protecting Powers and the ICRC, and Repatriation of POWs 37
7 Detention in Non-International Armed Conflicts 38
,7 Targeting 38
3 The Basic Rule: Article 48 of Additional Protocol I 38
4 Military Objects and Objectives 39
a ‘Objects’ and ‘Objectives’ 39
b Nature, Location, Purpose and Use 39
5 Additional Rules on Targeting Military Objectives 40
a Indiscriminate attacks 40
b Proportionality 40
8 Means and Methods of Warfare 41
2 The General Rule: the Prohibition on Causing Unnecessary Suffering and Superfluous
Injury, and on Indiscriminate Means and Methods 41
3 The Obligation to Assess the Legality of New Means and Methods of Warfare 42
4 Specifically Prohibited Weapons and Restricted Weapons 42
5 Prohibited Methods of Warfare 45
6 Means and Methods of Warfare of Indeterminate or Contested Status 48
Tadić Appeal Judgement 51
Prlic 52
Armed Activities 54
Aisalla Molina (Ecuador v. Colombia) 54
Chapter 16 - The Application of HR in AC 54
, 1 Historical Development of International
Humanitarian Law
1 Introduction
2 Henri Dunant and the Battle of Solferino
The first was the Battle of Solferino, in June 1859. Fought between the forces of Austria and
a French-Piedmontese alliance, involving over 300,000 men, it was one of the great battles
in the struggle to unify Italy, and the most bloody: lasting only a day, the battle left 6,000
dead and nearly 40,000 wounded. Henri Dunant was a Swiss businessman who happened
to arrive in the nearby town of Castiglione on the day of the battle and witnessed the
aftermath.
In his 1862 book, he called for the establishment of societies for the relief of the wounded –
organisations of experienced volunteers, recognised and accepted by commanders and
armies in the field, who would provide immediate treatment of the wounded on the battlefield
– and for States to agree by treaty to grant such access. This would alleviate suffering as
early as possible, and prevent the exacerbation of injuries, amputations and deaths that had
resulted from neglect and infection at Solferino.
3 The 1864 Geneva Convention
Dunant’s suggestions were taken up by the Geneva Society for Public Welfare, and in early
1863 a committee including Dunant was set up to develop these ideas.
The core provisions of the Convention were neutrality of the wounded and those who care
for them, the adoption of the red cross on a white background as the distinctive sign for
medical facilities and personnel, and an obligation to collect and care for the wounded and
sick on the battlefield, regardless of nationality.
A dozen years after this, the Geneva committee adopted the name by which it is now known:
the International Committee of the Red Cross (ICRC).
4 The Lieber Code 1863
Meanwhile, the other major development arose indirectly out of the Civil War in the United
States (1861–5). At the beginning of the war, Francis Lieber was a highly regarded professor
at Columbia University in New York, writing and lecturing on military law. A code of all the
laws and usages of war should be drawn up. Drafted by Lieber and revised by the board, the
‘Instructions for the Government of Armies of the United States in the Field’ were issued by
the Union government as General Orders No. 100 in April 1863. The ‘Lieber Code’ was the
first time a government had set out explicit rules not only on matters of internal discipline, as
previous military codes had done, but also on the treatment of enemy forces and civilians.
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