International Humanitarian and International Criminal Law
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International Humanitarian and International Criminal Law | Notes
Lecture 1 – INTRODUCTION TO THE HISTORIC FOUNDATIONS OF IHL AND
ICL
International Humanitarian Law
Part of international law
Set of rules which limit the conduct (what is ok in war) and effect
(consequences: how/who are you harming) of an armed conflict
Protects persons who are not (any longer) participating in an armed
conflict (e.g. civilians)
Applies to armed conflict (international and non-international)
- International armed conflict (IAC): conflict between states (state A
vs state B). E.g. WWI and WWII
- Non-international armed conflict (NIAC)l: conflict between non-
state actors (intra- and interstate actors). E.g. RIA, ISIS, Yemen
conflict, Palestine
The law of war?!
Is war legal? Yes, under certain circumstances (the way they are
conducted)
Paradox of IHL
Blatantly disregarded while it is the most widely accepted body of
international law
Why is IHL disregarded by many states:
Hard to enforce (= left up to national level)
Soldiers are fighting the war (they don’t know what is allowed/not
allowed)
Few or low consequences
WWI and industrialisation (chemical warfare)
Henry Dunant witnessed the aftermaths (e.g. civilians wounded) in Geneva
creation International Committee of the Red Cross (ICRC) and Geneva
Convention (1864).
Law of The Hague (1899 and 1907) v. Law of Geneva
Jus ad bellum (= “right to war”; whether war is legal yes or no;
legitimacy of use of force) v. jus in bello (= “rules in war”; what is
the law during war; means and methods)
WWII – breakthrough (GCs 1949 and APs 1977)
Rules of war (see lecture 2!)
Can’t harm civilians
Should care for the once wounded
Civilian infrastructure cannot be hurt (= essential for their survival)
, Some people are specially protected (if they surrender, POW
(Protecting Prisoners of War) have special protection)
No torture
,Enforcement?
Teach rules to armed forces and general public
Prevent violations and punish them
Enact laws to punish war crimes
Tribunals?
International Criminal Law
WWII Nuremberg and Tokyo (sister tribunal: crimes committed in Japanese
empire) Tribunals.
Reasons:
Tyranny and disregard for human dignity
Overwhelming horrors
Criticism (week 4-5)
Victors’ justice
Nullum crimen sine lege (no crime without the law) = one cannot
face criminal punishment except for an act that was criminalised by
law before he/she performed the act
Nullum poena sine lege (no punishment without the law) = one
cannot be punished for doing something that is not prohibited by law
Violation of state sovereignty
International Law Commission
Road to the Rome Statute
Addressing conflicts worldwide with national and international
criminal tribunals and courts
The Hague = city of peace and justice
Nuremberg, Tokyo, The Hague, Rwanda, Sierra Leone, Phnom Penh
and back to The Hague (etc.)
ICL
Is a subset of international law; places criminal responsibility on
individuals and punishes acts that are defined as crimes by
international law
Those responsible for the most serious crimes of international
concern
Punishes war crimes – connection to IHL
Various courts around the world administer ICL and develop it (different forms
of tribunals/courts).
The main court for ICL is now the ICC, which is the only permanent court in
this field.
, What is the difference?
International IHL ICL IHRL
Law
Traditionally: Individuals = Individuals = Individuals =
states = subject subject subject subject
Part of PIL Part of PIL Part of PIL
Purpose: regulates the provides for provides for
conduct of the individual certain rights
parties to an criminal which accrue to
armed conflict responsibility for individuals and
and the most serious groups vis-à-vis
protection of crimes of their
categories of international government
persons/civilians concern
and civilian
object
Main Geneva Statute of ad-hoc ICCPR, ICESCR,
international law Conventions and hybrid CERD, CAT,
instruments: (1949) and tribunals and the CEDAW, CRC,
Additional Rome Statute CMW, CEED,
Protocols (1977) (1998/2002) CRPD
Lecture 2 – KEY RPINCIPLES OF IHL AND THE ROLE OF THE ICRC
Yemen = IHL (armed conflict e.g. law of war)/ICL (crimes against
humanity not necessary in times of war): connection individuals who may
have committed war crimes
India and Kashmir = PIL: it deals with conflicts/obligations between states
(e.g. borders)
Ecuador = HR: e.g. land disputes, business, indigenous population
(minorities)
A = IHL (jus in bello)
B = PIL (jus ad bellum)
Lex specialis drogal les generalis = special law trumps general law
What is IHL?
IHL is a set of rules which seeks for humanitarian reasons to
1) limit the effects of armed conflict (e.g. death, mass destruction)
2) it protects those who are not or no longer participating in hostilities
(e.g. civilians, wounded, shipwrecked)
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