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Key Principles in International Humanitarian Law Pontus Winther

Key Principles in International Humanitarian Law Pontus Winther. Outline of the Lecture. The legitimate object of acts of war The fundamental balance between military necessity and humanity in IHL From fundamental balance to key principles From principles to rules

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Key Principles in International Humanitarian Law Pontus Winther

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  1. Key Principles in International HumanitarianLaw Pontus Winther

  2. Outline of the Lecture • The legitimate object of acts of war • The fundamental balance between military necessity and humanity in IHL • From fundamental balance to key principles • From principles to rules • Acts not expressly prohibited in IHL treaties – the “Martens Clause” • Application of IHL in practice

  3. Total WarLimitedWarfare GC AP I Art 35 (1) • “In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.”

  4. Legitimate Object of Acts of War “… the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy…” St Petersburg Declaration on explosive projectiles (1868), para. 1

  5. The Fundamental Balancein IHL… MilitaryNecessity HumanitarianRequirements

  6. … manifested as TreatyLaw… St Petersburg Declaration on explosive projectiles (1868), para. 1 “… [the] Commission having by common agreement fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity…” HC II on War on Land (1899), preamb. para. 5 ”…these provisions, the wording of which has been inspired by the desire to diminish the evils of war so far as military necessities permit…” HC IV on Waron Land (1907), preamb. para. 5 ”…these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.”

  7. … and as Customary International Law “Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war;the principle of the freedom of maritime communication; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” Corfu Channel case, Judgment of April 9th, 1949: I.C.J. Reports 1949, p. 22.

  8. Discussion: Howaremilitarynecessity and humanitybalanced in these ICRC customary IHL rules? Rule 6. Civilians are protected against attack, unless and for such time as they take a direct part in hostilities. Rule 14. Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. Rule 38 A. Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives. Rule 29. Medical transports assigned exclusively to medical transportation must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy. Rule 47. Attacking persons who are recognized as hors de combat is prohibited… provided he or she abstains from any hostile act and does not attempt to escape.

  9. From Fundamental ConsiderationstoKey Principles Distinction Proportionality Precaution Prohibition ofcausingsuperfluousinjuryor unnecessarysuffering(SIrUS) MilitaryNecessity HumanitarianRequirements

  10. Key principles Distinction. “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”, GC AP I, art. 48 (ICRC CIHL Rule 1 & 7). Proportionality. ”Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”, ICRC CIHL Rule 14. Precaution. ”In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects”, ICRC CIHL Rule 15. Prohibition ofSIrUS: ”The use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited”, ICRC CIHL Rule 70.

  11. Discussion: Identify the key principles behindthese ICRC customary IHL rules: Rule 20. Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit. Rule 29. Medical transports assigned exclusively to medical transportation must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy. Rule 39. The use of property of great importance to the cultural heritage of every people for purposes which are likely to expose it to destruction or damage is prohibited, unless imperatively required by military necessity. Rule 47. Attacking persons who are recognized as hors de combat is prohibited… provided he or she abstains from any hostile act and does not attempt to escape. Rule 65. Killing, injuring or capturing an adversary by resort to perfidy is prohibited. Rule 74. The use of chemical weapons is prohibited.

  12. The Principle ofDistinction – Persons The opponent’speople ”No militarythreat” ”Militarythreat” May not be subjecttodirect attack May be subjecttodirect attack Civilians Persons in the armedforces Persons in the armedforces Medical personnelReligiouspersonnelPersons hors de combat Civiliansdirectlyparticipating in hostilities Nils Melzer, ICRC

  13. The Principle ofDistinction – Property The opponent’sproperty ”No militarythreat” ”Militarythreat” May not be subjecttodirect attack May be subjecttodirect attack Civilianproperty Militaryproperty Militaryproperty Medical facilities PoWfacilities Property ”horsde combat” ”Dual useobjects” ↓ MilitaryObjective

  14. The Principle ofDistinction – Property Militaryobjectives, GC AP I, art. 52(2) Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution[*]to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Civilianobjects, GC AP I, art. 52 (1) Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. * Commentaryto GC AP I, p. 632, footnote3

  15. The Principle ofProportionality Incidental harm tocivilians and civilianproperty in relation tomilitaryadvantage, GC AP I, art. 51 (4) and (5)(b) Indiscriminate attacks are prohibited. Indiscriminate attacks are: [- - -] an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. [- - -]

  16. The Principle ofPrecaution Precautions in Attack, GC AP I, art. 57 para. 1—3 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.2. With respect to attacks, the following precautions shall be taken:(a) those who plan or decide upon an attack shall:(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52and that it is not prohibited by the provisions of this Protocol to attack them;(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

  17. The Principle ofPrecaution Precautions against the effects of attacks, GC AP I, art. 58 The Parties to the conflict shall, to the maximum extent feasible:(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;(b) avoid locating military objectives within or near densely populated areas;(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations

  18. The SIrUS Principle Quarter, GC AP I, art. 40It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis. Laser Weapons, CCW Convention Protocol IV, art. 1 It is prohibited to employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision…

  19. Acts not explicitly prohibited in IHL treaties The ”Martens Clause”, GC AP I, art. 1(2) In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. • See also HC II (1899) and HC IV (1907), preamb. • Reminds of the binding character of CIHL • Prevents interpretations e contrario of IHL • Covers the development of new means and methods of warfare

  20. Discussion.Applicationof principles of IHL http://www.youtube.com/watch?v=tbqmr5rtdOs

  21. Discussion.Applicationof principles of IHL www.truthinmedia.org/Bulletins2000/tim2000-1-3.html http://www.youtube.com/watch?v=t6zKEUGsPCo Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, section B(i)

  22. Pontus Winther pontus.winther@fhs.se

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