LAW5509 International Humanitarian Law — Unit 1: Introduction of IHL

Unit 1: Introduction of IHL

1.1 Definition and Scope of IHL

International humanitarian law (IHL) — the law of armed conflict: the body of rules which, in times of war, protects persons who are not (or no longer) participating in the hostilities, and restricts the means and methods of warfare. The classic definition’s core: IHL does not ask whether the war is lawful (the jus ad bellum question — the UN Charter’s world) but how it must be fought (the jus in bello). The scope’s faces: the armed conflicts only (the applicability threshold of U2); the parties bound (states, organised armed groups — and the individuals through criminal responsibility); the temporal-and-territorial scope (the conflict’s duration-and-space). The aims (the ICRC’s formulation): limit suffering, preserve humanity in the midst of war.

1.2 Sources of IHL

1.2.1 Hague Law and Geneva Law

The two parents: Hague law — the conduct-of-hostilities branch (the means-and-methods: the weapons’ rules, the targeting’s law; the 1899-and-1907 Hague Conventions’ lineage); Geneva law — the protection branch (the victims: the wounded, the sick, the shipwrecked, the POWs, the civilians — the 1949 Conventions’ four). The modern merger: the Additional Protocols of 1977 (the distinction-and-proportionality rules unified); today’s IHL is taught-and-applied as one body.

1.2.2 Customary International Humanitarian Law

The custom’s role: the rules binding all states without treaties — the ICRC’s Customary Study (the 161 rules’ catalogue) — the importance for the non-party states (Nepal’s own case: the Protocols unratified, the custom applying — U5.7’s verified record); the persistent-objector’s doctrine; the study’s critiques (the identification’s method debates).

1.2.3 Martens Clause

The clause’s text (from the 1899 preamble, named after Fyodor Martens): where no treaty rule applies, persons remain under the protection of “the principles of humanity and the dictates of public conscience.” The functions: the gap-filler (no legal vacuum in war); the interpretation’s aid; the debates (the clause as soft minimum vs the customary-law generator — the modern readings).

1.3 Historical Development of IHL

1. The ancient-and-religious faces — the warrior codes of every civilisation (the just-war’s scholastic line; the Islamic law’s siyar).
2. The modern founders — Henry Dunant’s Solferino experience (1859) → the ICRC’s birth (1863) and the first Geneva Convention 1864 (the wounded soldiers).
3. The Hague line — the 1899-and-1907 conferences (the weapons-and-conduct codification).
4. The interwar steps — the 1925 Geneva Protocol (the gas ban); the 1929 POW convention.
5. The 1949 consolidation — the four Conventions (GC I-IV: the wounded-and-sick in the field; the wounded-and-sick at sea; the POWs; the civilians) — the ratification’s universality (every state party — Nepal in 1964, the verified record).
6. The 1977 Protocols — AP I (the international conflicts’ expansion: the distinction, proportionality, civilians’ protection) and AP II (the non-international conflicts’ first treaty) — plus AP III (2005, the red crystal emblem).
7. The modern era — the weapons treaties (the U3/U4 catalogue); the criminal enforcement’s rise (U5’s tribunals’ line).

1.4 Principles of IHL

1.4.1 Principle of Distinction

The cardinal rule: the parties must distinguish between combatants and civilians (and between military objectives and civilian objects) — the attacks directed only against the former; the civilians’ immunity (the AP I’s core articles; the customary rule No. 1 of the ICRC study). The distinction’s violations: the indiscriminate attacks; the direct targeting of civilians — the war crimes’ core.

1.4.2 Principle of Military Necessity

The belligerent’s licence-and-limit: only the measures necessary to achieve the legitimate military purpose — and not otherwise prohibited. The necessity’s function: the permission’s frame (the destruction of the enemy’s forces, not the terror of the population); the tension with humanity (the classic balance: military necessity vs the requirements of humanity).

1.4.3 Principle of Proportionality

The collateral calculus: the incidental civilian harm must not be excessive relative to the concrete-and-direct military advantage anticipated. The proportionality’s operation: the commander’s ex ante assessment (the information reasonably available — the Aftermath’s judgment’s faces); the proportionality’s debates (the weighting’s incommensurability — the civilian lives vs the military advantage).

1.4.4 Principle of Humanity

The suffering’s floor: the prohibition of suffering, injury or destruction not necessary for the legitimate military purpose (the St. Petersburg Declaration’s 1868 line: “the only legitimate object… is to weaken the military forces of the enemy”). The humanity principle as the system’s telos (the Martens Clause’s twin).

1.5 Interplay between IHL and Other Branches of International Law

1.5.1 IHL and International Human Rights Law

The lex specialis question: the armed conflict’s special law (IHL) vs the human rights’ continuation (the HR course’s U6.3 face — the ICJ’s advisory doctrine: the rights continue, some read through IHL’s standards). The differences: the IHL’s equality of parties (no just-side) vs the rights’ universality; the derogation vs the IHL’s non-derogable core; the overlap’s practical questions (the detention in conflict, the fair trial in occupied territory).

1.5.2 IHL and International Criminal Law

The enforcement’s branch: the grave breaches-and-war crimes (U5.1’s catalogue) prosecuted through the national courts (the universal jurisdiction) and the international tribunals (U5.4-5.5’s line from Nuremberg to the ICC). The relationship: the IHL defines, the criminal law prosecutes — the individual responsibility (U5.2) as the IHL’s teeth.

1.5.3 IHL and International Refugee Law

The conflict’s displacement face: the refugees’ flight from the war (the 1951 Convention’s well-founded fear — often the conflict’s product); the IHL’s own displacement rules (the forced transfer’s prohibition); the IDPs’ world (the Guiding Principles — the HR course’s U6.4 face); the Nepal record (the conflict’s internal displacement — U5.7’s case study).

Model Questions

1. Define IHL and distinguish it from jus ad bellum. (10)
2. Explain the sources of IHL: the Hague-and-Geneva branches, custom, and the Martens Clause. (15)
3. Trace the historical development of IHL from Solferino to the Protocols. (10)
4. Explain the principles of IHL with the distinction’s primacy. (15)
5. How does IHL interact with human rights law and international criminal law? (15)
6. Short notes: (a) Martens Clause; (b) Lex specialis; (c) 1949 Conventions; (d) St. Petersburg line. (4×5)

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