UNIT-5 INTERNATIONAL HUMANITARIAN AND REFUGEE LAW
A. INTRODUCTION
1. DEFINITION, ORIGIN AND DEVELOPMENT OF IHL
2. GENEVA CONVENTION OF 1949 AND ADDITIONAL PROTOCOL OF 1977
3. INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAL LAW: A
DISTINCTION
INTRODUCTION:
International Humanitarian Law (IHL), also called the law of war or armed conflict, consists of rules
designed to reduce the suffering caused by war. It protects those not participating in the conflict
(civilians, medical personnel) and limits the weapons and methods of warfare.
Following are the key features:
1. Protection: Safeguards civilians and those no longer fighting, such as wounded soldiers and
prisoners. Protects medical and religious personnel, as well as cultural and humanitarian
sites.
2. Prohibited Weapons: Bans harmful weapons like chemical and biological weapons, explosive
bullets, blinding laser weapons, and anti-personnel mines.
3. Universal Law: Based on ancient principles and modern treaties, IHL applies universally
during armed conflicts.
4. Symbols: Recognized symbols like the red cross and red crescent mark protected people and
places.
ORIGIN AND SOURCES OF IHL:
1. International conventions-
4. The Hague Conventions (1907): Focus on regulating warfare techniques and weapons.
5. The Geneva Conventions (1949): Provide comprehensive protections for injured soldiers,
prisoners of war, and civilians. Almost all nations have adopted these conventions.
6. Additional Protocols (1977): Extend protections to victims of international (Protocol I) and
non-international (Protocol II) armed conflicts.
7. Other Agreements:
• Protection of cultural property (1954).
• Prohibition of biological (1972) and chemical weapons (1993).
• Bans on anti-personnel mines (1997).
8. Enforcement Mechanisms:
International Tribunals: Post-conflict courts, such as those for Yugoslavia (ICTY) and Rwanda
(ICTR), were established to address war crimes and genocide.
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Rome Statute (1998): Created the International Criminal Court to prosecute war crimes and
crimes against humanity.
2. International Customs:
Many rules of international humanitarian law (IHL) have gained widespread acceptance and
have become customary law. These rules bind all states, even if they have not signed related
treaties, and also apply to armed groups in non-international conflicts. This is crucial because
treaty law is limited in non-international armed conflicts.
3. General Principles of Law:
IHL includes non-derogatory rules, known as jus cogens (compelling law), such as the
prohibition of genocide and torture.
4. Judicial Decisions and Teachings:
International courts have played a significant role in interpreting and developing IHL.
Secondary sources include judicial rulings and insights from highly regarded legal scholars.
SCOPE OF INTERNATIONAL HUMANITARIAN LAW:
• Protection of people- IHL protects people who are not or are no longer fighting, such as
civilians, medical personnel, and prisoners of war. It also protects vulnerable groups, such as
women, children, and foreign nationals. IHL protects people's lives, dignity, and personal
rights. It also prohibits torture, cruel treatment, and corporal punishment.
• Protection of objects -IHL protects civilian objects, such as schools, homes, and shopping
malls. It also protects specific objects, such as medical units, cultural property, and places of
worship.
• Restrictions on warfare -IHL limits the means and methods of warfare, such as weapons and
military tactics. For example, it's forbidden to kill or wound an enemy who surrenders.
• Application -IHL applies mainly to conflicts between sovereign states. The "first-shot" theory
states that IHL applies from the moment one state uses force against another. The level of
protection a person receives depends on their status, nationality, and the circumstances they
are in.
FUNDAMENTAL PRINCIPLES OF IHL UNDER INTERNATIONAL CONVECTIONS:
1. Principle of Distinction - Parties to a war should have the ability in order to distinguish
combatants from the civilians and ensure that they should target only the former.
2. Principle of Necessity and Proportionality. - It refers to the ability of restraint in the amount
of force applied in defeating the enemy that should be shown by parties to an armed
conflict. Under no circumstances should there be excessive loss of life in order to achieve the
goals set forth due to military.
3. Principle of Humane Treatment - Humanitarian Law has made it mandatory that all civilians
are to be treated humanely and with respect at all times. It also aims to prohibit violence
against the life of a civilian who is not a part or is no longer a part of the war.
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4. Principle of non-discrimination - The fundamental rights of every person shall be secured
whether or not he is involved in the war.
5. Preferential treatment to Women and Children - Preferential treatment to women and
children to ensure respect and protection of the same from the effects of war. The Law
prohibits children below 18 years from taking part in the hostilities.
JUS AD BELLUM AND JUS IN BELLO:
Broadly, there are two branches of analysing a war:
I. The reasons for fighting a war.
II. How a war is fought.
Theoretically, it is quite possible that a war may be justified and fought without adhering to the rules.
On the other hand, it may be quite possible that a war may be totally unjustified where the parties to
the war adhere to the rules. Due to these possibilities, there is no link whatsoever between the two
branches of Humanitarian law.
Jus ad bellum-
Jus Ad Bellum as a branch of Humanitarian Law defines just reasons for which a state may fight a war
and also describes the criteria that justifies the reasons for the conflict. The principal modern source
of Jus Ad Bellum finds its place in the Charter of United Nations as-
1. States should not use force against another nation’s territorial integrity or political
independence.
2. States have a right to self-defence if they face an armed attack.
Jus in Bello-
Jus in Bello deals with the rules and regulations of war once it has begun. This branch is not
concerned with the fact or the reasons as to whether the war is justified or not. The basis of this Law
is primarily:
• Customary Laws developed over time.
• Hague Regulations (1899 and 1907): Rules on warfare conduct.
• Geneva Conventions (1949): Protect victims of war, including civilians.
• Additional Protocols (1977): Define combatants and aim to prevent indiscriminate attacks.
The International Red Cross calls Jus In Bello "Humanitarian Law" as it protects people during
conflict. Some military scholars refer to it as the "Law of War" or "Law of Armed Conflict," focusing
on the practices and customs of war.
In summary, Jus Ad Bellum determines why a war begins, while Jus In Bello governs how wars are
conducted once they start. These two branches operate independently and address different
aspects of war.
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TYPES OF ARMED CONFLICT:
1. International Armed Conflict (IAC):
o Refers to wars between two or more countries, even if a formal state of war is not
declared.
o Includes situations where a country’s territory is partially or fully occupied without
resistance.
o Example: Wars between nations like World War II.
Application of Humanitarian Law in International Armed Conflict: Protection is provided to:
• Military Personnel: Wounded, sick, or shipwrecked soldiers in land or naval warfare, and
medical staff.
• Prisoners of War: Ensuring humane treatment.
• Civilians: Including foreign nationals, those in occupied territories, and medical/religious
personnel.
2. Non-International Armed Conflict (NIAC):
o Refers to conflicts within a country between government forces and non-
government groups or between such groups themselves.
o Excludes minor riots and isolated violence.
o Criteria: High intensity of violence and organized groups.
o Example: Civil wars or prolonged internal tensions, like those in Syria.
Application of Humanitarian Law in Non-International Armed Conflict: Protection extends to:
• Wounded Fighters: Both government and rebel groups.
• Detainees: Those captured due to the conflict.
• Civilians: Ensuring their safety from violence.
• Medical and Religious Personnel: Protecting those providing humanitarian services.
3. Internationalized Armed Conflict:
o Occurs when internal conflicts involve external states supporting different sides.
o Example: The 1998 conflict in the Republic of Congo, where internal fighting had
external state involvement.
Key Rules:
• Protocol II: Provides detailed protections for non-international conflicts, overriding Common
Article 3 of the Geneva Conventions.
• State Sovereignty: In internal conflicts, the State retains control over rules but must adhere
to minimum standards set by International Humanitarian Law.
DIFFERENCES BETWEEN IHL AND HRL:
1. Context of Application:
• IHL: Applies only during armed conflicts (international or non-international).
• HRL: Applies at all times—during peace and conflict, but some rights may be restricted in
emergencies.
2. Purpose:
• IHL: Focuses on regulating warfare and protecting those affected by armed conflicts, such as
civilians, prisoners of war, and the wounded.
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• HRL: Protects the inherent rights and dignity of all individuals, including civil, political,
economic, social, and cultural rights.
3. Target Groups:
• IHL: Primarily addresses warring parties and combatants.
• HRL: Focuses on the relationship between the state and individuals.
4. Source of Laws:
• IHL: Derived from treaties like the Geneva Conventions and Hague Conventions, and
customary international law.
• HRL: Based on international treaties like the Universal Declaration of Human Rights,
International Covenant on Civil and Political Rights (ICCPR), and International Covenant on
Economic, Social and Cultural Rights (ICESCR).
5. Enforcement Mechanisms:
• IHL: Violations are addressed through war crime tribunals (e.g., International Criminal Court,
ad hoc tribunals).
• HRL: Monitored by human rights organizations, courts, and committees (e.g., UN Human
Rights Council, European Court of Human Rights).
INTERRELATIONSHIP BETWEEN IHL AND HRL:
1. Applicability:
IHL applies specifically during armed conflicts, regulating the conduct of war and protecting
those not involved in hostilities (e.g., civilians, wounded soldiers).
HRL applies at all times, both in peace and during conflict, protecting the rights and
freedoms of individuals. However, some rights can be restricted during emergencies or war.
2. Common Goal:
Both aim to safeguard human dignity and protect individuals from harm, ensuring humane
treatment. For instance, both laws prohibit torture and cruel treatment.
3. Overlap in Armed Conflict:
During conflicts, HRL continues to apply alongside IHL. For example, the right to life under
HRL complements IHL's prohibition on targeting civilians.
4. Differences in Focus: IHL is more specific to war and includes rules on permissible weapons
and tactics. HRL focuses on broader civil, political, economic, social, and cultural rights.
5. Enforcement: IHL violations are often addressed through war crime tribunals and
international courts. HRL violations are addressed by human rights commissions, courts, and
committees.
In summary, IHL and HRL are complementary legal frameworks. While IHL governs the conduct of
armed conflicts, HRL provides a broader set of protections for individuals at all times.
