Full complete lecture notes including additional notes on the powerpoints of the class Basics of International Humanitarian Law taught by Prof. Dr. H. Fischer, an elective of the law faculty of Leiden University and also part of the minor Law, Culture and Development.
International Humanitarian Law
Important for exam
According to guest lecturer:
art 1(2)
art. 48 AP I – distinctions principle
art 43 (1), 44 (1) AP I
art. 50-52 AP I
art 49 (1) AP I
art. 50 (1) AP I
art. 51 (1) an (3) AP I
art. 52 (1) AP I
only 28 articles of AP II – articles 1, 1(2), 13 (3) AP II shows states don’t want to
much domestic involvement by rules, could only agree on 28 articles
Art. 48 AP I distinctions
Fischer himself last session/blackboard:
Detained persons and their protection under IHL
Direct participation
Unlawful combatants
Indiscriminate attacks in all aspects including use of weapons and proportionality
No criminal law, no cyber warfare, interpretations
Fischer during lectures:
Exam preparation, question on POW
How to answer a question:
o Always start with what the text says
o Then apply it/build the argument and think of consequences
look at picture and apply law in what you find in the description
o You need to find the most specific article and then go into the interpretations
then go back to the general and come to a conclusion.
Session 1: IHL Sources, Development and Structure
Definition and sources of international humanitarian law
1. Interpretation of IHL treaties
2. The importance of customary law for all types of armed conflicts
3. The background, content and relevance of ICRC - Customary Law Study
4. The development of customary law in the jurisprudence of the international courts
and tribunals with regards to different groups of victims: wounded and sick, POWs,
civilians
Development, structure, fundamental principles
1. Definition and elements
2. The development of the law
3. Types of treaties, armed conflicts, the applicable treaty law
4. Relation to other parts of international law
5. Naval warfare and its present relevance
, 6. Special aspects of air-warfare
7. Cyber warfare
8. Principle of humanity and protected persons
9. Common art. 3 of the GC
10. Structure of the GC
11. Basics of combatant and civilian status
12. Principle of distinction
13. Other principles
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit
the effects of armed conflict. It protects persons who are not or are no longer participating
in the hostilities and restricts the means and methods of warfare. International humanitarian
law is also known as the law of war or the law of armed conflict.
International humanitarian law is part of international law, which is the body of rules
governing relations between States. International law is contained in agreements between
States – treaties or conventions –, in customary rules, which consist of State practise
considered by them as legally binding, and in general principles.
International humanitarian law applies to armed conflicts. It does not regulate whether a
State may actually use force; this is governed by an important, but distinct, part of
international law set out in the United Nations Charter.
Limitation and protection
Treaties and customary law
Distinct from chapter VII UN Charter.
Sources of IHL:
Treaty law: Written, precise, reliable, established in transparent procedure, changes
open, interpretation difficult, reservations change obligations
o Contain rights and obligations for states but also individuals.
o Only with ratification it becomes applicable.
o Treaties have either been developed in Geneva or The Hague.
Principles: Conviction of states, established as custom and made applicable by special
concrete rules
Customary law: Established by practice, Identification difficult and constantly
challenged, Permanent need to verify changes and identify rules accordingly
o Developed through the behaviour of states; if many states behave the same
way for a long time, it creates customary law.
o Always contested: need to prove that there something is actually customary
o International Red Cross established list of customary law, which is a true
reflection applicable customary law.
, Geneva Law deals with the protection of individuals and groups.
The Hague Law deals with the limitation of weapons.
Geneva Law:
1864: First Geneva Convention “Convention for the Amelioration of the Condition of
the Wounded in Armies in the Field”:
1. Not kill wounded soldiers
2. Take care of wounded soldiers
3. Emblem for those taking care of wounded soldiers
1929 (revision in 1949): Third Convention “relative to the Treatment of Prisoners of
War” to protect the lives of prisoners
1949 (based on convention 1899): Fourth Convention “relative to the Protection of
Civilian Persons in Time of War” to protect civilians.
2005: Additional Protocol III
o Additional Protocol III is drawn up in such a way as to prevent any future
proliferation of other emblems.
o Added establishing an additional protective sign for medical services, the Red
Crystal, as an alternative to the ubiquitous Red Cross and Red Crescent
emblems, for those countries that find them objectionable.
Hague Law:
1907-1929: The Hague Law Land Warfare Convention
1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or
other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol)
prohibiting the use of chemical and biological weapons in international armed
conflicts.
o led to Paris Chemical Convention in 1993 outlaws the production,
stockpiling, and use of chemical weapons and their precursors.
1980: Convention on Certain Conventional Weapons (negotiated in Geneva)
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