ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN ______

What is international humanitarian law?

What is international attack, and when the use of such as cultural property; and humanitarian law? armed force is authorized by the restrictions on the use of certain United Nations Security Council. and methods of warfare International humanitarian law (see next section). (IHL) is a set of rules that seeks, What are the origins of IHL? for humanitarian reasons, to limit Over time, the number of States the effects of armed conflict. It Warfare has always been subject adhering to these rules has protects persons who are not, or to certain principles and customs. grown, securing virtually are no longer, participating in It may be said therefore that IHL universal acceptance for the core hostilities, and imposes limits on has its roots in the rules of of IHL. the means and methods of ancient civilizations and religions. warfare. IHL is also known as ‘the What are the -based law of ’ or ‘the law of armed Universal codification of IHL sources of IHL? conflict’. began in the nineteenth century, notably through the adoption of The four Conventions IHL is part of public international the 1864 Geneva for of 1949 (GC I, II, III and IV), law – the body of rules governing the Amelioration of the Condition which have been universally relations between States. Public of the Wounded in Armies in the ratified, constitute the core is made up Field and the 1868 Declaration of treaties of IHL. The Conventions primarily of treaties or Saint Petersburg, which have been supplemented by conventions concluded between prohibited the use of certain Additional Protocols I and II of States, customary rules (general projectiles in wartime. Since 1977 (AP I and AP II) relating to practice accepted as law), and then, States have agreed to and the protection of victims of general principles of law (see codified a series of practical rules international and non- Article 38 of the Statute of the to keep pace with evolving international armed conflict of Justice). means and methods of warfare respectively; and by Additional and the related humanitarian Protocol III of 2005 (AP III) must be made consequences. These rules relating to an additional between IHL, which regulates the strike a careful balance between distinctive emblem (the red conduct of parties engaged in an humanitarian concerns and the crystal). armed conflict (jus in bello), and requirements of States that part of public international and non-State parties to armed Other international treaties law set out in the Charter of the conflict. They address a broad prohibit the use of certain United Nations that regulates range of issues, including: weapons and military tactics, and whether a State may rightfully protection for wounded and sick protect certain categories of resort to armed force against soldiers; treatment of prisoners of person and object from the another State (). war and other persons detained effects of hostilities. These The Charter prohibits such use of in connection with an armed treaties1 include: force, with two exceptions: cases conflict; protection for the of self-defence against an armed population and civilian objects,

1 For more information, see the various Advisory Service factsheets on specific international treaties.  the 1925 Protocol for the  the 2008 Convention on conflict. These rules are set out in Prohibition of the Use of Cluster Munitions (CCM). Article 3 common to the four Asphyxiating, Poisonous or and in AP Other Gases, and of In addition, the 1998 Statute of II. However, customary law Bacteriological Methods of the International Criminal Court expands the protection provided Warfare (ICC) established the Court’s by certain rules of IHL to all types  the 1954 Convention for the in respect of war of armed conflict, including non- Protection of Cultural (Article 8), thus international conflicts. Property in the Event of strengthening States’ obligation Armed Conflict and its two to prevent serious violations of IHL applies once the conditions Protocols of 1954 and 1999 IHL. for an armed conflict or  the 1972 Convention on the occupation are met on the ground Many provisions of the treaties Prohibition of the – even if a state of conflict is not mentioned above are now Development, Production and recognized as such by one of the thought to reflect customary IHL Stockpiling of Bacteriological parties and regardless of whether and are, consequently, binding (Biological) and Toxin the occupation encounters on all States and all parties to a Weapons and on their armed resistance. IHL applies conflict.2 Destruction equally to all sides, irrespective of who started the fighting and, in  the 1976 Convention on the When does IHL apply? Prohibition of Military or any the case of international armed conflict, even if one of the Other Hostile Use of IHL applies only to situations of belligerent States is not party to Environmental Modification armed conflict. It does not cover the Geneva Conventions or Techniques internal tensions or disturbances Additional .  the 1980 Convention on such as isolated acts of violence Prohibitions or Restrictions that do not reach the threshold of The distinction between on the Use of Certain an armed conflict. In addition, IHL international and non- Conventional Weapons distinguishes between international conflict is not always Which May Be Deemed to Be international and non- clear-cut. In recent years, Excessively Injurious or to international armed conflict. conflicts have arisen that contain Have Indiscriminate Effects elements of both. A case-by-case (CCW) and its five Protocols International armed conflicts approach is therefore of 1980 (I, II and III), 1995 are those in which one or more recommended to determine (IV), and 2003 (V) States resort to the use of armed which normative framework is force against another State.  the 1993 Convention on the applicable. Prohibition of the of national liberation, under Development, Production, certain conditions, and situations What does IHL cover? Stockpiling and Use of of occupation are regarded as Chemical Weapons and on international armed conflicts. 1) The protection of those who their Destruction are not, or no longer, taking part  the 1997 Convention on the International armed conflicts are in hostilities. Prohibition of the Use, governed by the four Geneva Stockpiling, Production and Conventions and Additional The Geneva Conventions Transfer of Anti-Personnel Protocol I. regulate the protection and Mines and on their treatment of four categories of Non-international armed Destruction (APMBC) person during international conflicts are restricted to the  the 2000 Optional Protocol to armed conflict: territory of a single State and the Convention on the Rights involve either governmental of the Child on the  the wounded and sick in armed forces fighting one or involvement of children in armed forces in the field (GC more non-State armed groups, or armed conflict I) such groups fighting each other.  the 2006 International  wounded, sick and The rules applicable to non- Convention for the Protection shipwrecked members of the international armed conflict have of All Persons from Enforced armed forces at sea (GC II) a more limited scope than those Disappearance  prisoners of war (GC III) governing international armed

2 More information on these customary Humanitarian Law (2005, 2009) and in its (http://www.icrc.org/customary- rules can be found in the two-volume ICRC customary IHL database ihl/eng/docs/home). study, Customary International

, including those in procedural guarantees, and the mines, cluster munitions, and occupied territories (GC IV). right – of the people in question – incendiary weapons. Pillage, to exchange messages with their starvation and perfidy4 are some The civilians protected under GC families. of the methods of warfare IV are those held by a party to the specifically prohibited under IHL. conflict, or an occupying power, against protected of which they are not nationals. persons are forbidden. IHL also regulates the general Internally displaced persons, conduct of hostilities on the basis women, children, refugees, In order to facilitate the protection of three core principles: stateless persons, and journalists of those who are not, or are no distinction, , and are some of the groups that longer, participating in hostilities, precaution. The principle of qualify for such protection. IHL defines a number of clearly distinction requires that the recognizable ‘distinctive parties to an armed conflict Protection similar to that provided emblems’, with a view to distinguish at all times between in international armed conflict identifying and protecting objects civilians and civilian objects on applies in non-international and persons providing the one hand, and armed conflict to persons who humanitarian assistance and and military objectives on the are not, or are no longer, taking medical care. These emblems other, and that attacks may only part in hostilities. are the red cross, the red be directed against combatants crescent, the red lion and sun and military objectives. The Persons protected by IHL are (which is no longer used), and the purpose of this is to protect entitled to respect for their lives, red crystal (for States that have individual civilians, civilian their dignity, and their physical ratified AP III). The distinctive property, and the civilian and mental integrity. They are emblems can be used, in times of population as a whole. Under this also afforded various legal armed conflict, to identify principle, indiscriminate attacks guarantees. They must be , places and are prohibited. protected and treated humanely objects (including, primarily, in all circumstances, with no armed forces’ medical units and The principle of proportionality, adverse distinction. transports, as well as other a corollary to the principle of medical and religious services). distinction, dictates that More specifically, it is forbidden They may also be used, either incidental loss of civilian life and to kill or wound an enemy who during armed conflict or in property or injury to civilians must surrenders or is unable to defend peacetime, for the purpose of not be excessive in relation to the himself or herself. The wounded identifying persons or objects concrete and direct military and the sick must be collected linked to the International Red advantage anticipated. In order and cared for by the party in Cross and Red Crescent to implement the restrictions and whose power they find Movement.3 prohibitions on targeting, the themselves. Medical personnel, principle of precaution requires units and transports must all be 2) Restrictions on the means of all parties to an armed conflict to protected. Access to warfare – in particular weapons – take specific precautions such humanitarian assistance for the and the methods of warfare, such as, when conducting an attack, to civilian population affected by the as military tactics. verify that targets are military conflict must be facilitated, objectives or to give the civilian subject to the consent of the As a general rule, IHL prohibits population an effective warning parties concerned. means and methods of warfare before the attack. It can also that cause superfluous injury or entail restrictions on the timing In addition, detailed rules govern unnecessary suffering. and location of an attack. the conditions of for prisoners of war and the Specific treaties have therefore In addition, Articles 35(3) and 55 treatment of civilians under the banned or restricted the use of of AP I prohibit methods and authority of an enemy power. many weapons, including means of warfare that cause These rules cover such matters exploding bullets, chemical and widespread, long-term and as the provision of food, shelter biological weapons, blinding and medical care, judicial and laser weapons, anti-personnel

3 For more information, see the (http://www.icrc.org/eng/assets/files/other/ is obliged to accord, protection under the Advisory Service factsheet entitled protection_emblems.pdf). rules of international law applicable in “The Protection of the Red Cross / Red 4 AP I, Art. 37(1), defines as “[a]cts armed conflict, with intent to betray that Crescent Emblems” inviting the confidence of an adversary to confidence”. lead him to believe that he is entitled to, or

severe damage to the natural documents for protected Additional information on environment. persons, etc. domestic implementation of IHL measures adopted by States is The rules on the conduct of At the international level, IHL available on the ICRC’s National hostilities also grant specific treaties provide for certain Implementation Database.6 protection to certain objects, compliance mechanisms. These including cultural property and include, in particular: the What is the difference between places of worship (the 1954 system; the humanitarian law and human Hague Convention for the possibility to resort to an enquiry rights law? Protection of Cultural Property in procedure; and the International the Event of Armed Conflict; AP I, Humanitarian Fact-Finding There are similarities between Article 53; AP II, Article 16), Commission, a mechanism some of the rules of humanitarian objects indispensable to the specifically envisaged in law and law. And survival of the civilian population Article 90 of AP I. States party to both bodies of law strive to (AP I, Article 54; AP II, Article 14), AP I also undertake to cooperate protect the lives, health and and “works and installations with the United Nations to deal dignity of individuals. However, containing dangerous forces” with serious violations of AP I or these two branches of public (AP I, Article 56; AP II, Article 15). of the Geneva Conventions. international law have developed Such works and installations, as Some weapons treaties, separately, have different scopes well as cultural property and civil including the APMBC, the CCW of application, are contained in defence personnel and facilities, and the CCM, provide for different treaties, and are subject can be identified by specific reporting mechanisms aimed at to different compliance symbols. monitoring States Parties’ mechanisms. In particular, compliance with the obligations human rights law – unlike How is IHL implemented? deriving from these treaties. international humanitarian law – applies during both armed Implementation of IHL is primarily In terms of repression of IHL conflict and peacetime, although the responsibility of States. They violations, the ICC is empowered many of its provisions can be must respect and ensure respect to prosecute the most serious derogated from during an armed for these rules in all crimes of international concern, conflict.7 circumstances (Article 1 common including war crimes. By virtue of to the four Geneva Conventions). the principle of complementarity Where can more information its jurisdiction is intended to come on IHL be found? States must adopt legislation and into play only when a State is regulations aimed at ensuring full genuinely unable or unwilling to The ICRC’s Advisory Service on compliance with IHL. In prosecuted alleged war criminals IHL, which offers legal and particular, they must enact over which it has jurisdiction. In technical support to States for the to punish the most serious addition to the ICC, the United implementation of IHL, has violations of the Geneva Nations Security Council has developed a set of factsheets on Conventions and their Additional established two international various important IHL issues. Protocols – that is, violations that tribunals to prosecute crimes They are available online at: amount to war crimes. States committed during the armed http://www.icrc.org/eng/resource must also adopt laws protecting conflicts in the former Yugoslavia s/documents/legal-fact- the red cross, red crescent, red and in Rwanda, including serious sheet/national-implementation- crystal and other symbols. violations of IHL. Mixed courts, legal-fact-sheets.htm comprising both domestic and Other domestic implementation international elements, have also measures should also be taken: been put in place to address developing educational crimes committed during certain 12/2014 programmes for the armed forces armed conflicts, including the and the general public; recruiting ones in Cambodia, Lebanon, and/or training qualified, Sierra Leone and Timor-Leste.5 specialist personnel; producing identity cards and other

5 For more information, see the 6 http://www.icrc.org/ihl-nat Similarities and differences” Advisory Service factsheet titled 7 For more information, see the (http://www.icrc.org/eng/assets/files/other/i “Penal Repression: Punishing War Crimes” Advisory Service factsheet entitled hl_and_ihrl.pdf). (http://www.icrc.org/eng/assets/files/other/ “International Humanitarian Law and penal_repression.pdf). International Human Rights Law: