IHL - PIL HUMANTARIAN ZACHARIAH WAKILI MSOMI_075842.pdf

International humanitarian law

1. International Humanitarian
Law & Public International
Law
Etienne Kuster & Madalena Vasconcelos Rosa
L AW A N D P O L I C Y D E PA R T M E N T O F T H E I C R C
N O V E M B E R 2 0 1 9

2. Overview
0. Objectives
1. IHL as a branch of public international law
2. Jus ad/contra bellum V. jus in bello
3. IHL and IHRL
◦Similarities, differences and interrelation
◦Use of force in armed conflict
4. IHL and ICL
5. IHL and Refugee law
6. Questions and discussion
7. Recap

3. Objectives
After this presentation, you should be able to:
1. mention main legal fields IHL interacts with
2. describe some of the challenges faced in those interactions
3. list the main issues by order of importance for people affected by
armed conflict

4. IHL as a branch of Public
International Law
Law of state
responsibility
International criminal
law
Environmental
law
Law on dispute
settlement Refugee lawRefugee law
Human rights law
International
humanitarian law

5. Ius ad bellum v.Ius in bello
JUS IN BELLO LAW APPLYING TO BELLIGERENTS DURING WAR
●War is a reality
●IHL applies regardless of the legality of the conflict under
jus ad bellum
●International rules governing relations between the
belligerents
JUS AD/CONTRA BELLUM RIGHT/PROHIBITION TO USE FORCE IN INTERNATIONAL RELATIONS
●War is prohibited – Art. 2/4 UN Charter
●Enumerated Exceptions

6. Ius ad bellum v.Ius in bello
QUESTION: DOES THE EXISTENCE OF IHL JUSTIFY WAR?
YES
•By regulating war, could IHL
presupposesits existence?
•Could IHL be considered as
«supporting the existence
of war» by «making it
humane » (and therefore
«acceptable»)?
NO
•IHL was developed when war
was still lawful (and not to
justifyits existence)
•UN Charter itself foresees
situations, where war may be
possible (Chapter VII, Art. 51)
•War is still a reality today: IHL
seeksto prevent/limit
suffering during conflict

7. Ius ad bellum v.Ius in bello
QUESTION: DOES THE EXISTENCE OF IHL JUSTIFY WAR?
CONCLUSION
•We need to regulate war to ensure a minimum of humanity in those illegal
and inhumane situations.
•For practical, political and humanitarian reasons, IHL needs however to be
the same for every belligerent = Ius in belloapply to the warring parties
irrespective of the reasons for the conflict and whether or not the cause
upheld by either party is just.
•Indeed, the population of the aggressor State should not be less protected
because its government violated international law.

8. Ius ad bellum v.Ius in bello
“Nor can the Court make a determination on the validity of the view that the recourse to nuclear
weapons would be illegal in any circumstance owing to their inherent and total incompatibility
with the law applicable in armed conflict. […] Thus, methods and means of warfare, which would
preclude any distinction between civilian and military targets, or which would result in
unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of
nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems
scarcely reconcilable with respect for such requirements. Nevertheless, the Court considers that it
does not have sufficient elements to enable it to conclude with certainty that the use of nuclear
weapons would necessarily be at variance with the principles and rules of law applicable in armed
conflict in any circumstance.
[…] Accordingly, in view of the present state of international law viewed as a whole, as examined
above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it
cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by
a State in an extreme circumstance of self-defence, in which its very survival would be at stake.”
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 8, 1996, ICJ Rep. 1996,
p. 226, paras 95-6

9. Quiz 1: Endless escalation
Several merchant vessels from Zeratonia were seized by the Warmistan, while
navigating outside its territorial waters. In reprisal, Zeratonian armed forces
conducted aerial strikes against the Warmistan military base responsible for those
seizures. Shortly after, a massive cyber attack ended up paralyzing almost all
Zeratonian infrastructures, including military networks, public administration
offices, and hospitals, causing hundreds of thousands casualties. As «its survival
wasatstake»,ZeratonialaunchedyesterdayanuclearstrikeagainsttheWarmistan
capital,causingmillionsofcasualties.Inyouropinion:
1. The nuclear strike was lawful.
2. The nuclear strike was unlawful.
3. Zeratonia was entitled to use force against Warmistan.
4. Questions 1 and 2 should be clearly distinguished from question 3.
WHY?

10. IHL and IHRL
International Humanitarian
Law (IHL)
International Human Rights
Law (IHRL)
SCOPE OF
APPLICATION
In armed conflicts (or
while/where there is an
existence of nexus with
armed conflict)
At all times
SCOPES OF
PROTECTION AND
OBLIGATION
IHL in binding on all parties
to the conflict
Regulates the conduct of
hostilities
Protects the people
affected by armed conflicts
IHRL is binding only on
States
Protects individuals from
abusive or arbitrary exercise
of power by State
authorities

11. DEROGABILITYNo derogation
possible
Derogation is
possible under
certain
circumstances and
conditions ("hard
core" rights: jus
cogens).
INTERRELATION
IN ARMED
CONFLICT
IHL and IHRL apply simultaneously to the
same situation - complementarity
Lex specialis
Exclusively regulated areas
IHL and IHRL

12. IHL and IHRL
“The Court observes that the protection of the International Covenant of Civil and
Political Rights does not cease in times of war, except by operation of Article 4 of
the Covenant whereby certain provisions may be derogated from in a time of
national emergency. Respect for the right to life is not, however, such a provision.
In principle, the right not arbitrarily to be deprived of one’s life applies also in
hostilities. The test of what is an arbitrary deprivation of life, however, then falls
to be determined by the applicable lex specialis, namely, the law applicable in
armed conflict which is designed to regulate the conduct of hostilities. Thus
whether a particular loss of life, through the use of a certain weapon in warfare, is
to be considered an arbitrary deprivation of life contrary to Article 6 of the
Covenant, can only be decided by reference to the law applicable in armed
conflict and not deduced from the terms of the Covenant itself. [...]”
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 8,
1996, ICJ Rep. 1996, p. 226, para. 25

13. IHL and IHRL
USE OF FORCE IN ARMED CONFLICT
In armed conflict there are two
paradigms that coexist:
•The conduct of hostilities (IHL)
•The law enforcement (IHRL)
Increase number of conflicts where
it is necessary to conduct law
enforcement operations
Challenges
ICRC expert meeting and report

14. Quiz 2: Blurred lines
In Warmistan, following the nuclear strike, the country is in deep need for humanitarian
assistance. In addition, the WLF, a local armed group, is engaged in a NIAC against the
government in a bid to overthrow it. In parallel, regular protests take place against the
authorities for allegedly neglecting their duty of assistance. In a particularly violent event,
hundreds of people clash with police forces with sticks and stones, while the police respond
with rubber bullets. A few policemen are killed by a dozen of armed protesters apparently
belonging to the WLF. The army is sent in reinforcement and shoot at protesters with real
bullets, causing 67 dead and hundreds of wounded. In your opinion:
1. as the protest took place during a NIAC, IHL should be the lex specialis.
2. the protest should have been regulated under the law enforcement paradigm.
3. the protest should have been regulated under the conduct of hostilities paradigm.
4. the protest should have been regulated under both paradigms through an escalation of
force procedure.

15. IHL and ICL
Obligation of implementation
of IHL
Grave breaches of IHL and
universal jurisdiction
Obligation to conduct an
investigation and to prosecute
or extradite

16. IHL and ICL
IHL does not define sanctions for
violations
The role of criminal law vis-à vis
IHL (international and national
criminal law)
The interpretative role of criminal
courts

17. Quiz 3: Incomplete enactment
Following a resolution from the UN Security Council, and under the pressure of
the International Community, Zeratoniais requested to prosecute the general,
who ordered the nuclear strike on Warmistan. A Party to the Geneva
Conventions and Additional Protocols, Zeratoniaclaims it cannot proceed, as
such prosecution would violate the principle of legality. Indeed, the country has
not yet criminalized the violation of distinction, proportionality and precautions
principles by individuals in its internal order. In your opinion:
1. Violation of those principles has already been criminalized through
international custom.
2. Zeratonianlaw should first translate those violations in its internal legal order
to make prosecution lawful.
3. Monist countries like Zeratoniado not need national law to prosecute such
violations.
4. In any case, other States parties to the Geneva Conventions, as well as the
ICC, can prosecute.

18. IHL and Refugee Law
Definition of displaced persons
and refugees under IHL
Protection given in times of
armed conflict
Prohibition of forced movements
of civilians
Non-refoulement

19. Questions and Discussion
Use of force in armed conflicts

20. Recap
1. Mention main PIL fields IHL interacts with:
PIL regulating use of forces between States (jus ad/contra bellum), IHRL,
ICL, Refugee law
2. Describe some of the challenges faced in those interactions:
Confusion between jus ad/bellum and jus in bello, lex specialis concept,
paradigm governing use of force in armed conflict, criminalisation of IHL
violations, obligation to prosecute…
3. List the main issues by order of importance for people affected by
armed conflict:
Confusion between jus ad/bellum and jus in bello > paradigm governing
use of force in armed conflict > obligation to prosecute

21. THANK YOU FOR YOUR ATTENTION!