Introduction to International Humanitarian Law

Non – Reciprocity - means that both countries must respect IHL even if one
DEFINING IHL of the state has violated such law, meaning that they cannot retaliate by
violating humanitarian obligations against the other state.
IHL also known as the law of armed conflict or the law of war (jus in bello), is
a set of rules that seek to limit the humanitarian consequences of armed  Balancing Military necessity and humanity
conflict.
NOTE:
It comprises rules in international law which establish minimum standards of Principle of Humanity - This principle specifies that all humans have the
humanity that must be respected in any situation or armed conflict capacity and ability to show respect and care for all, even their sworn
enemies. Modern International Humanitarian Law is not naive and accepts
Purpose that harm, destruction and death can be lawful during armed conflicts,
1. To restrict the means and methods of warfare that the parties may international humanitarian Law simply looks to limit the harm, and the
employ principle of humanity is very much at the spirit of this ambition. Many rules of
2. to ensure the protection of person who are considered as civilians or international humanitarian law are inspired by this idea, specifically those
those persons who are no longer taking a direct part in the hostilities setting out protections for the wounded and sick.
3. provide methods and employment of war
Principle of Military Necessity - No principle is more central to the content
Protected persons and understanding of Military necessity. Military necessity, as understood by
Children. modern civilized nations, consists in the necessity of those measures which
Internally displaced people. are needful for securing the end of the war, which are lawful according to the
Missing persons. modern law.
Prisoners of war and detainees.
Wounded, sick and shipwrecked
IHL is mainly based on the balance of between these two conditions.
CORE PRINCIPLES OF IHL Meaning that IHL recognizes that in wartime there may be a military
International humanitarian law has mainly two basic foundation principles. necessity to cause death injury and destruction and to impose severe
The Principle of Humanity and the Principle of military necessity. Finding the security measures. Despite this Military necessity, IHL does not give the
balance between these two principles is the role which can be loosely States in conflict or the belligerents to wage an unrestricted war. Further
described by the legislature. The state shall adopt the convention regarding considerations of humanity imposed certain limits on the means and methods
the international humanitarian law or contribute through their practice for the of warfare and require that those who have fallen into enemy hands be
formation of customary international law rule that applies armed act. treated humanely at all times.
According to the principle of humanity, the state and the civilians or
combatants should help each other and according to the principle of military  Principle of distinction
necessity, the armed forces which are trained by the government of the state Under the principle of distinction, all involved in the armed conflict must
should always be ready for any type of dispute in the state. distinguish between the persons thus defined (the combatants) and civilians.
Combatants must distinguish themselves (i.e., allow their enemies to identify
 Equality of Belligerents and non-reciprocity them) from all other persons (civilians), who may not be attacked nor directly
This provides that in an armed conflict the belligerents must always adhere or participate in the hostilities.
comply with their humanitarian obligation, they cannot justify the failure to
respect such by invoking the harsh nature of the war or armed conflict. The main aim of this principle is to entail a duty to avoid or in any event
minimize the infliction of incidental death injury or destruction on persons and
Equality of Belligerents - Both countries must equally adhere to the IHL objects protected against direct attack. Or mainly to avoid collateral damage.
whether they are considered as a state who is exercising its right of self
defense or as state who is considered as an aggressor state who resorted  Principle of Precaution
force in violation of international or national law.
Use of intelligence. Incumbent upon They impose rules only on those States that have expressed their consent to
be bound by them.
The Geneva Conventions and their Additional Protocols contain the most
important rules
 Proportionality a) limiting the barbarity of war. They protect people who are not taking
The international humanitarian law rule of proportionality in attacks holds that part in the fighting (civilians, medical personnel, aid workers) and
in the conduct of hostilities during an armed conflict parties to the conflict b) those who can no longer fight (the wounded, sick and shipwrecked
must not launch an attack against lawful military objectives if the attack 'may troops, prisoners of war).
be expected' to result in excessive civilian harm (deaths, injuries, or damage
to civilian objects, or a combination thereof) compared to the 'concrete and The First Geneva Convention protects wounded and sick soldiers on
direct military advantage anticipated'. If conducted intentionally a land during war.
disproportionate attack may constitute a war crime.
This Convention is the fourth version of the original 1864 Geneva Convention
Schirched earth method. on the wounded and sick, which was modified in 1906 and then in 1929. It
contains 64 articles, which provide protection not only for the wounded and
Damage suffered vs sick, but also for medical and religious personnel, medical units and medical
transports.
 Unnecessary suffering
The Convention also grants formal recognition to the protective emblems.
NOTE:
Unnecessary suffering refers  to the effects of certain methods or The Second Geneva Convention protects wounded, sick and
means of warfare which uselessly aggravate the suffering of disabled shipwrecked members of armed forces at sea during war.
persons. International humanitarian law forbids such methods and means.
This Convention replaced the Hague Convention of 1907 for the Adaptation
Though IHL cannot protect civilians from the effects of the hostilities of war, to Maritime Warfare of the Principles of the Geneva Convention of 22 August
what the IHL can do is to restrict the means and methods of warfare that are 1864. In terms of structure and content its provisions are very similar to those
considered to inflict unnecessary suffering or superfluous injury on of the First Geneva Convention. It contains 63 articles, which apply
combatants specifically to war at sea. For example, it protects hospital ships.

 Humane Treatment The Third Geneva Convention applies to prisoners of war.

The principle of humane treatment as one of the fundamental rules in IHL
requires that the wounded and sick, prisoners of war, civilians and other This Convention replaced the Convention relative to the Treatment of
persons protected by IHL are treated humanely at all times. Prisoners of War of 1929. It contains 143 articles. The categories of person
entitled to prisoner-of-war status were broadened in accordance with the First
and Second Geneva Conventions. Places of detention and the conditions of
detention were more precisely defined: particularly with regard to the labour
SOURCES OF IHL of prisoners of war, their financial resources, the relief they receive, and the
judicial proceedings instituted against them. The Convention establishes the
 Treaty Law principle that prisoners of war must be released and repatriated without delay
The most relevant sources of IHL is through the treaties. Treaties: after hostilities have ended.

Treaties, such as the Four Geneva Conventions of 1949 and the two The Fourth Geneva Convention affords protection to civilians, including
Additional Protocols of 1977, are written conventions in which States in occupied territory.
formally establish certain rules when it comes to armed conflicts. Treaties
may also take the form of protocols, covenants, agreements, and so on. This Convention is composed of 159 articles. It contains a short section that
deals broadly with the protection afforded to people against certain
consequences of war; however, the conduct of hostilities is not dealt with in international community must consider that there is a legal obligation to
this section. The bulk of the Convention deals with the status and treatment engage in a practice.
of protected per-sons, distinguishing between the situation of foreigners on
the territory of one of the parties to the conflict and that of civilians in Customary IHL continues to be relevant in today’s armed conflicts for two
occupied territory. It spells out the obligations of the Occupying Power vis-à- main reasons. The first is that, while some States have not ratified important
vis the civilian population and contains detailed provisions on humanitarian treaty law, they remain nonetheless bound by rules of customary law.
relief for persons in occupied territory. It also contains a specific regime for
the treatment of civilian internees. The second reason is the relative weakness of treaty law governing non-
international armed conflicts – those that involve armed groups and usually
The Additional Protocols: take place within the boundaries of one country. A study published by the
ICRC in 2005 showed that the legal framework governing internal armed
In the two decades that followed the adoption of the Geneva Conventions, conflicts is more detailed un-der customary international law than under
non-international armed conflict and wars of national liberation became more treaty law. Since most armed conflicts today are non-international this is of
frequent. particular importance.

In response, two Protocols additional to the four 1949 Geneva Conventions Customary law may fill certain gaps in the protection provided to
were adopted in 1977. victims of armed conflict by treaty law. These gaps result when

They strengthen protection for victims of international (Additional Protocol I) 1. certain States do not ratify certain treaties (e.g. the Additional Protocols
and non-international (Additional Protocol II) armed conflicts and place limits or certain weapons conventions). (In the case of armed conflicts
on the way wars are fought. involving a coalition of States with different treaty based obligations –
because they have not all ratified the same treaties – customary law
Additional Protocol II was the first international treaty that dealt exclusively may represent those rules that are common to all members of the
with situations of non-international armed conflict. coalition. In this situation, customary law may serve as a base for
drafting common rules of engagement.) or when:
In 2005, a third Protocol additional to the four 1949 Geneva Conventions was 2. treaty law lacks detailed rules on certain issues pertaining to non-
adopted; this created another emblem, the red crystal, which has the same international armed conflict. (This is the case with respect to the
international status as the red cross and the red crescent. conduct of hostilities (military objectives, indiscriminate attacks,
proportionality, precautions in attack), the protection of journalists,
Treaties on child warrior humanitarian assistance, and also in other areas such as the
Treaties on environmental protection implementation of humanitarian law. Once again, customary law may
fill the gap, because practice has created a substantial number of
customary rules that are more detailed than the often-rudimentary
 Customary International Law: provisions in Additional Protocol II of 1977.)

Customary international law is made up of rules that are considered “general  General Principles of law
practice accepted as law” and that exist independently of treaty law.
Customary IHL is of crucial importance in today’s armed conflicts because it These are legal principles that are recognized in all developed national legal
fills gaps left by treaty law applicable to both international and non- systems such as the duty to act in good faith, the right to self-preservation
international conflicts and so strengthens the protection afforded to victims. and non-retroactivity of criminal law. However, the flaw con with the GPL is
that they are hard to identify however, GPL can be of decisive importance
International law is made up of both treaty law and the rules of what is known because they give rise in independent international obligations.
as customary international law. Treaties are written conventions in which
States formally establish certain rules. Customary international law, on the One example of is when the ICJ on several occasions derived IHL obligations
other hand, is not written but derives from “a general practice accepted as directly from GPL namely the “elementary obligations of humanity which it
law”. A customary rule reflects the practice of states; furthermore, the held to be more exacting in peace than in war time
 Exception:
 Soft Law 1. Prohibition does not impair a states inherent right of individual or
collective self defence if an armed attack occurs - or inter state for
NOTE: “soft law” (non-treaty agreements and not covered by the Vienna may be lawfully resorted as an action of self defense to the extent
Convention on Treaties, like administrative rules guiding practice of states for that it is necessary and proportionate to repel an armed attack.
international organizations; preferred by States because it is simpler and 2. Security council may use or authorize the use of inter State force as
more flexible for future relations. may be necessary to maintain or restore international peace and
security.
The mentioned sources of IHL are generally broader in application and often
require a more detailed interpretation before they can be applied in practice.  IHL and Human Rights Law
One example would be the precise meaning of “Armed Conflict”
while IHL regulates the conduct of hostilities and the protection of persons in
Such guidance on the interpretation of the IHL can be given to states situations of armed conflict, such rules and principles of IHL cannot be
themselves as the legislator of the international law. However, Absent of derogated.
such state driven guidance in the task of interpreting IHL falls to the
International Courts and tribunals mandated to to adjudicate cases
governedx by the IHL HRL protects the individuals from abusive or arbitrary exercise of power by
the state authorities, however as compared to IHL, in HRL there are some
rights that can be derogated in times of Public emergency, such as the
 CONTEMPORARY LEGAL BASIS OF IHL freedom of movement. This is to protect the population and to facilitate
governmental action aimed at restoring public security and law and order.
 IHL in the international Legal Order

IHL IN THE PUBLIC INTERNATIONAL LAW

IHL has the tendency to overlap with other bodies of international law, so it is
important to distinguished it from such. Particularly those that may apply in
IHL but which have a different object and purpose these may include
1. The UN Charter and the prohibition of the use of inter-state force
2. International Humanitarian Law
3. The law of neutrality

 IHL and the prohibition against the use of inter – state force

IHL mainly governs situations of Armed Conflicts, it does not use regulate the
whether the use of force of one state against another is lawful in the first
place, such function falls to the law governing use of the inter State force,
also referred to as Jus ad bellum, or the law of war.

Interstate force – is a basic premise set out by the IN charter and customary
law wherein It provides that the states shall refrain in their international
relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with
the purpose of the United Nations.
SCOPE OF INTERNATIONAL HUMANITARIAN LAW B) DISTINCTIONS BETWEEN NON-INTERNATIONAL AND
INTERNATIONAL ARMED CONFLICTS
A) DEFINING ARMED CONFLICT
INTERNATIONAL ARMED NON -INTERNATIONAL ARMED
An international armed conflict occurs when one or more States have CONFLICT CONFLICT
recourse to armed force against another State, regardless of the reasons As to structure and status of parties involved
or the intensity of this confrontation. No formal declaration of war or Occur between two or more states Takes place between states and a
recognition of the situation is required. non-governmental armed groups or
between such groups only
• Once an armed conflict exists, any action taken for reasons related As to threshold of the intensity of violence
to that conflict is governed by IHL. The level of violence required to The level of violence required to
trigger an international armed trigger an non-international armed
• An armed conflict exists whenever recourse is had to armed force or conflict is significantly lower conflict is significantly higher
belligerent occupation between States (international armed conflicts), or
when protracted armed violence takes place between governmental The criteria of the threshold of
authorities and organized armed groups or between such groups (non- violence and the degree of
international armed conflicts). organization of the armed group
distinguish situations of non-
• Belligerent occupation exists to the extent, and for as long as, one international armed conflicts from
State maintains military authority over all or part of the territory of another situations of internal disturbances,
State, even if such occupation encounters no armed resistance. riots, terrorism, or high criminality
that are not subject to international
• Armed conflicts involving foreign (including multinational) intervention humanitarian law. If the threshold or
are deemed to be international or non-international in nature depending on organization criteria are not fulfilled,
whether they involve armed confrontations between States, or between the situation does not amount to a
States and organized armedgroups. non-international armed conflict.

• legally speaking, there are no other types of armed conflict. Internal

disturbances and tensions – riots, isolated and sporadic acts of violence and
similar acts – do not amount to armed conflict. Treaty Law and IHL

IHL does not apply to inter-State confrontations that fall short of armed The international armed conflict to which the IHL is governing is now primarily
conflict, or to internal disturbances and tensions, such as riots, isolated and codified in the
sporadic acts of violence and similar acts not amounting to armed conflict. 1. Hague Regulations
2. Geneva conventions
some of the duties it stipulates may apply already in peacetime, and certain 3. Additional Protocol 1
of its protections may extend beyond the end of an armed conflict. For
example, many weapons treaties prohibit not only the use, but also the This treaty law is now supplemented by a rich body of customary law.
development, stockpiling, production and sale of certain weapons by States,
and require them to subject the development or acquisition of any weapon to An international armed conflict is an armed conflict between two or more
a legal review. states. Common Article 2 to the four 1949 Geneva Conventions provides that
they ‘apply to all cases of declared war or of any other armed conflict
The interpretation and clarification of that concept is therefore largely left to which may arise between two or more of the High Contracting Parties,
State practice, international case-law and legal scholars. even if the state of war is not recognized by one of them’
 Article 2 NOTE: Belligerency, the condition of being in fact engaged in war. A nation is
deemed a belligerent even when resorting to war in order to withstand or
In addition to the provisions which shall be implemented in punish an aggressor. A declaration of war is not necessary to create a state
peacetime, the present Convention shall apply to all cases of of belligerency
declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war The implementation of humanitarian law—and the signing of special
is not recognized by one of them. humanitarian agreements between parties to a conflict—has no bearing
on the legal or political status of the parties to the conflict or of the
Rather than 'war', the Geneva Conventions use the term 'armed conflict' to territories concerned
highlight that the determination whether an armed conflict exists within the
meaning of Common Article 2 depends on the prevailing circumstances, not 2. The nature of the confrontation between them (“war,” “armed
the subjective views of the parties to the conflict. conflict” and “occupation”)

The Convention shall also apply to all cases of partial or total occupation of International armed conflicts are belligerent confrontations between two or
the territory of a High Contracting Party, even if the said occupation meets more States. Traditionally, States expressed their belligerent intent (animus
with no armed resistance. belligerendi) through formal declarations of war, which, ipso facto, created a
political state of war and triggered the applicability of the law of war (jus in
Although one of the Powers in conflict may not be a party to the present bello) between them, even in the absence of open hostilities.
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the Convention in Strictly speaking, the traditional law of war is broader than IHL in that it
relation to the said Power, if the latter accepts and applies the provisions comprises not only humanitarian rules, but essentially all norms governing
thereof. the relations between belligerent States.

For States that have ratified Additional Protocol I, the situations Today, an international armed conflict is presumed to exist as soon as a
referred to State uses armed force against another State, regardless of the reasons for
or intensity of the confrontation, and irrespective of whether a political state of
in common Article 2 also include: war has been formally declared or recognized.

“armed conflicts in which peoples are fighting against colonial belligerent intent remains an implied prerequisite for the existence of an
domination and alien occupation and against racist régimes in the international armed conflict. This means that the applicability of IHL cannot
exercise of their right of self-determination, as enshrined in the be triggered by merely erroneous or accidental causation of harm, or by
Charter of the United Nations and the Declaration on Principles of violence on the part of individuals acting without the endorsement or
International Law concerning Friendly Relations and Co-operation acquiescence of the State they represent.
among States in accordance with the Charter of the United Nations.”
The existence of an international armed conflict is determined, therefore,
Two Elements of the existence of an international Armed conflict primarily by what is actually happening on the ground.

1. The legal status of the belligerent Parties Temporal and territorial scope of international armed conflicts

Certain types of national liberation movements as “parties” to an international  Temporal scope of international armed conflicts - The
armed conflict although they do not, at the time, qualify as sovereign States applicability of IHL governing international armed conflicts begins
under international law. Armed confrontations between parties that are with a declaration of war or, in the absence of such declaration,
neither States nor national liberation movements cannot be regarded as with the actual use of armed force expressing belligerent intent. It
international armed conflicts but constitute either non-international armed is also triggered by the mere fact of one State invading another
conflicts or other situations of violence. with a view to occupying all or part of its territory, even when
such invasion meets with no armed resistance.
 Belligerent occupation can also exist when a foreign State exerts overall
An international armed conflict ends with a peace treaty or an control over local authorities who, in turn, exercise their direct
equivalent agreement, or with a unilateral declaration or other governmental control as de facto State agents on behalf of the occupying
unambiguous act expressing the termination of belligerent intent, power. Therefore, States cannot evade their obligations under occupation
such as a capitulation, declaration of surrender, or unconditional, law through the use of proxies.
permanent and complete withdrawal from previously contested
territory. Article 42 of the Hague Regulations clearly states that a territory is
considered occupied only to the extent effective control has actually been
Ultimately, the end of an armed conflict, like its beginning, must be established and can be exercised. In practice, therefore, delimiting the
determined on the basis of factual and objective criteria. territorial confines of an occupied area can be extremely difficult, particularly
in the case of partial occupation or where the situation on the ground can
 Territorial scope of international armed conflicts - In terms of change rapidly. In any event, the legal consequences of belligerent
territorial scope, the interpretation of the ICTY does not imply occupation do not depend on a minimum duration or minimum geographic
that IHL cannot apply outside the territory of the belligerent extension of occupation, but simply on the actual existence of effective
parties. It is merely intended to clarify that the applicability of IHL territorial control.
cannot be limited to those areas of belligerent States where
actual combat takes place, but that it extends to any act having a Invasion phase
nexus to the conflict (i.e. carried out for reasons related to the
conflict). According to the so-called “Pictet theory,” the Hague Regulations are based
on a strictly territorial notion of occupation, whereas the Fourth Geneva
C) CONCEPT OF BELLIGERENT OCCUPATION Convention extends its protection to all individuals “who, at a given moment
and, in any manner, whatsoever, find themselves, in case of a conflict or
Treaty law occupation, in the hands of a Party to the conflict or Occupying Power of
which they are not nationals.”
Belligerent occupation occurs when one State invades another State and
establishes military control over part or all of its territory. End of occupation

Accordingly, Article 42 of the Hague Regulations states: “Territory is Determining the end of belligerent occupation, however, has rightly been
considered occupied when it is actually placed under the authority of described as a “thorny task” fraught with political and legal issues of
the hostile army. The occupation extends only to the territory where significant complexity.
such authority has been established and can be exercised.”
In principle, there are three basic ways in which a situation of occupation can
Prerequisite of “effective control” come to an end:
a. withdrawal or loss of effective control,
The existence of occupation depends on a State’s factual ability to assume b. genuine consent to a foreign military presence, or
the de facto governmental functions of an occupying power, most notably to c. political settlement.
ensure public security, and law and order, and not by its willingness to do so.
withdrawal or loss of effective control
Therefore, unless an occupying power actually loses military control over the the most obvious way for a belligerent occupation to end is a full and
territory in question, therefore, it cannot escape its obligations under IHL by voluntary withdrawal of the occupying forces and the restoration of effective
choosing not to exercise effective control. control on the part of the local government. Alternatively, the displaced
territorial State may attempt to regain control over areas under hostile
Effective control does not necessarily have to be exercised directly occupation through renewed hostilities.
through the armed forces of the occupying power.
However, as soon as the ability of the occupying power to impose its military
authority is effectively eliminated for any length of time, the areas concerned
can no longer be regarded as occupied and the humanitarian obligations of the question of the extent to which such deployments could give rise to
the former occupying power towards their inhabitants are limited to those of situations of belligerent occupation under IHL, or whether the legal and policy
any other party to the conflict framework governing such deployments should be shaped by elements of
the law of occupation.
Genuine consent to a foreign military presence
Situations of belligerent occupation can also come to an end if the territorial Even coerced consent may be valid, however, as long as such coercion is
State consents to the continued presence of foreign armed forces. Such legitimized by a Chapter VII resolution of the UN Security Council, which,
consent is usually – but not necessarily – given in conjunction with a full or arguably, was the case in the Kosovo war. Also, the international community
partial transfer of authority from the former occupier to the local government. is unlikely to start authorizing multinational deployments involving the
Clearly, in order to be valid, such consent must be genuine and cannot be invasion and belligerent occupation of territory without the consent of the
based on a coerced agreement between the occupying power and a local territorial State.
regime, which would de facto stay under the control of the occupying power.
In the absence of an international legal framework specifically designed for
In order to avoid any potential abuse of such agreements, the Fourth Geneva such situations, IHL governing belligerent occupation may provide useful
Convention provides that the inhabitants of occupied territories “shall not be elements and guidance for determining policies with respect to issues such
deprived, in any case or in any manner whatsoever, of the benefits of the as maintaining public safety, and law and order, ensuring the basic protection
present Convention by any change introduced, as the result of the of persons and property, and taking charge of penal proceedings, internment
occupation of a territory, into the institutions or government of the said and other matters of public administration.
territory, nor by any agreement concluded between the authorities of the
occupied territories and the Occupying Power, nor by any annexation by the NON-INTERNATIONAL ARMED CONFLICTS
latter of the whole or part of the occupied territory.”
Treaty IHL governing noninternational armed conflicts consists, first and
Political settlement of the territorial status foremost, of common Article 3 and Additional Protocol II.
situation of belligerent occupation can end without the withdrawal of the
occupation forces through a political settlement involving the annexation by customary law is of great importance for the regulation of non-international
the occupying power of all or parts of the occupied territory or, alternatively, armed conflicts. Treaty law distinguishes between non-international armed
the establishment of an independent State on such territory. Again, in order conflicts within the meaning of common Article 3 and non-international armed
to be valid, such a political settlement must be based on an international conflicts falling within the definition provided in Article 1 of Additional Protocol
agreement expressing the genuine consent of the territorial State as to the II.
future legal status of the territory in question.
1. Article 3 common to the 1949 Geneva Conventions
In principle, the required consent can be replaced by a judgment of the ICJ It soon became clear, however, that States would agree to fully apply
where the States involved have submitted to the Court’s jurisdiction. In the all four Conventions to noninternational armed conflicts only at the
absence of consent by the territorial State, it is further conceivable that an price of a very narrow definition of non-international armed conflict
occupied territory could gain political independence with the military support that was highly unlikely to be met in reality.
of the occupying power in conjunction with widespread recognition by the
international community as a sovereign State. Unilateral annexations by the Accordingly, common Article 3 simply identifies a number of key
occupying power, however, may be binding as a matter of national law but duties and prohibitions providing a minimum of protection to all
have no effect on the legal status of the occupied territories under persons who are not, or who are no longer, taking an active part in
international law. In particular, the UN Security Council has confirmed the the hostilities. In return, this “miniature Convention”98 must be
status of the West Bank, East Jerusalem and the Syrian Golan Heights as applied “as a minimum” by each party to any “armed conflict not of
occupied territories (1980). an international character.

Multinational administration of territories Common Article 3 reads as follows:

In the case of armed conflict not of an The application of the preceding provisions shall
international character occurring in the territory not affect the legal status of the Parties to the
of one of the High Contracting Parties, each conflict.
Party to the conflict shall be bound to apply, as
a minimum, the following provisions:
A non-international armed conflict within the meaning of common Article 3
(1) Persons taking no active part in the does not necessarily have to involve a government; it can also take place
hostilities, including members of armed forces entirely between organized armed groups, a scenario that is particularly
who have laid down their arms and those placed relevant in areas of weak governance, such as so-called “failed States.”
' hors de combat ' by sickness, wounds,
detention, or any other cause, shall in all the concept of “party to an armed conflict” presupposes a minimum level of
circumstances be treated humanely, without any organization without which coordinated military operations and collective
adverse distinction founded on race, colour, compliance with IHL would not be possible. Furthermore, in order to qualify
religion or faith, sex, birth or wealth, or any other as an “armed conflict,” noninternational confrontations must always involve
similar criteria. violence that reaches a certain threshold of intensity.
To this end, the following acts are and shall
remain prohibited at any time and in any place 2. Article 1 of Additional Protocol II
whatsoever with respect to the above-
mentioned persons: in contrast to common Article 3, Additional Protocol II applies only to
armed conflicts involving a contracting State as a party to the conflict
(a) violence to life and person, in particular and taking place in the territory of that State. Moreover, part of the
murder of all kinds, mutilation, cruel treatment State’s territory must be under the effective control of the
and torture; opposition forces

(b) taking of hostages; For the present purposes, the decisive advantages of Article 1 of
Additional Protocol II are, first, that it provides an objective threshold
(c) outrages upon personal dignity, in particular of factual criteria at which the existence of a non-international armed
humiliating and degrading treatment; conflict can no longer be denied and, second, that it stipulates that
situation of “internal disturbances and tensions, such as riots,
(d) the passing of sentences and the carrying isolated and sporadic acts of violence and other acts of a similar
out of executions without previous judgment nature,” do not constitute armed conflicts.
pronounced by a regularly constituted court,
affording all the judicial guarantees which are Article 1 - Material field of application
recognized as indispensable by civilized
peoples. 1. This Protocol, which develops and
supplements Article 3 common to the Geneva
(2) The wounded and sick shall be collected and Conventions of 12 August 1949 without modifying
cared for. its existing conditions of application, shall apply to
all armed conflicts which are not covered by
An impartial humanitarian body, such as the Article 1 of the Protocol Additional to the Geneva
International Committee of the Red Cross, may Conventions of 12 August 1949, and relating to
offer its services to the Parties to the conflict. the Protection of Victims of International Armed
The Parties to the conflict should further Conflicts (Protocol I) and which take place in the
endeavour to bring into force, by means of territory of a High Contracting Party between its
special agreements, all or part of the other armed forces and dissident armed forces or other
provisions of the present Convention. organized armed groups which, under
 responsible command, exercise such control over This also requires that the confrontation reach a threshold of
a part of its territory as to enable them to carry out intensity that cannot be addressed through routine peacetime
sustained and concerted military operations and policing, but which requires the intervention of armed forces.
to implement this Protocol.
5. Temporal and territorial scope of non-international armed
2. This Protocol shall not apply to situations of conflicts
internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other (a) Temporal scope of non-international armed conflicts
acts of a similar nature, as not being armed
conflicts. begin as soon as armed violence occurring between sufficiently
organized parties reaches the required threshold of intensity.
3. Threshold of organization
minimal organization has always been considered a defining element (b) Territorial scope of non-international armed conflicts
of armed forces or organized armed groups participating in an armed
conflict as opposed to participants in riots and other forms of In terms of territorial scope, the applicability of both common
unorganized large-scale violence. Article 3 and Additional Protocol II is restricted to armed conflicts
taking place “in the territory” of a High Contracting Party; the
the level of organization of non-State armed groups has in practice Protocol even requires that the territorial State be involved as a
been assessed based on a series of indicative factors including party to the conflict. The territorial requirement is rooted in the
elements such as: fact that both instruments introduced binding rules not only for
the contracting States themselves, but also for non-State armed
“the existence of a command structure and disciplinary rules and groups operating on their territory. The legislative authority to do
mechanisms within the group; so derives from, and is limited to, the territorial sovereignty of
each contracting State.
the existence of a headquarters;
It is therefore only logical that both instruments incorporate a
the fact that the group controls a certain territory; territorial link between the conflict and the contracting State.

The ability of the group to gain access to weapons, other military At the same time, in situations of non-international armed
equipment, recruits and military training; conflict, not only does IHL apply in areas exposed to active
hostilities, it governs essentially any act or operation carried out
Its ability to plan, coordinate and carry out military operations, for reasons related to the conflict (nexus to the conflict),
including troop movements and logistics; regardless of territorial location. This does not mean that military
Its ability to define a unified military strategy and use military tactics; action against the enemy can lawfully be taken anytime and
and anywhere in the world (“global battlefield”). Rather, in order to be
lawful, any extraterritorial military action must always comply not
Its ability to speak with one voice and negotiate and conclude only with the rules and principles of IHL, but also with those of
agreements such as cease-fire or peace accords. jus ad bellum, the law of neutrality and any other relevant bodies
of international law.
4. Threshold of intensity
Ultimately, non-international armed conflicts are not
In order for such a non-international confrontation to amount to characterized by their limited or unlimited territorial scope, but by
armed conflict, it must be clearly distinguishable from internal the nature and quality of the parties involved, and by the actual
disturbances and tensions, such as riots, isolated and sporadic acts occurrence of hostilities and other acts or operations having a
of violence and other acts of a similar nature. belligerent nexus.
 several other States, and non-international in character if
ARMED CONFLICTS SUBJECT TO FOREIGN hostilities are conducted against organized armed groups only.
INTERVENTION

Armed conflicts subject to foreign intervention are a special form

of armed conflict sometimes also less accurately referred to as
“internationalized” armed conflicts.

In essence, this concept refers to a State, or coalition of States,

intervening in a pre-existing non-international armed conflict,
thereby becoming a (co-belligerent) party to that conflict.

In terms of applicable law, where a State intervenes in support of

the territorial government’s struggle against an insurgency, the
relations between the insurgency and the intervening State, just
like the pre-existing conflict, will be governed by IHL applicable
to non-international armed conflicts.

The armed confrontations between the intervening State and the

territorial State will automatically trigger the applicability of IHL
governing international armed conflicts. The confrontations
between the territorial State and the insurgency, on the other
hand, will retain their non-international character and continue to
be governed by IHL applicable to non-international armed
conflicts. In terms of applicable law, this results in the
coexistence of an international and a non-international armed
conflict, a situation that is sometimes also referred to as “double
classification.”

where an intervening State not only supports, but actually directs

and controls the insurgent party to such an extent that its
operations would have to be regarded as those of the
intervening State itself, the pre-existing non-international armed
conflict between the territorial State and an insurgency will be
transformed into an international armed conflict between the
territorial and the intervening States.

Therefore, where multinational forces remain under their national

command, they continue to be bound by the international
obligations of their State of origin. Where they operate under the
direct command of the UN, they are additionally required to
respect IHL by virtue of the UN Secretary-General’s Bulletin on
the observance by UN forces of international humanitarian
law.114 In the ICRC’s view, in both cases, the resulting conflict
should be regarded as being international in character in the
event of hostilities between the multinational force and one or
EMMANUEL P. FERNANDEZ Pursuant to the International Humanitarian Law, it establishes a
ASYNCHRONOUS ACTIVITY IN IHL distinction between non-international armed conflicts in the meaning
of common Article 3 of the Geneva Conventions of 1949 and non-
international armed conflicts falling within the definition provided in
1. Definition of armed conflict
Art. 1 of Additional Protocol II.
An armed conflict based on the provisions of the Geneva
Further, the types of Armed conflict may be distinguished in this
Conventions, simply means a conflict between two high contracting
manner;
parties by the use of armed force, this may be illustrated when both
states have to recourse or pursue through an armed force against a) As to structure and status of parties involved
the other state, regardless of the reason for the armed conflict or In international armed conflicts, it occurs between two or more
the intensity of the confrontation. states while in a non-international Armed Conflict Takes place
between states and a non-governmental armed groups or
2. Relevance of determining the nature of armed conflict.
between such groups only.
In a study that was published by Michael G. Wessells entitled “The
Changing Nature of Armed Conflict and its Implications for Children”, b) As to threshold of the intensity of violence
he stated that the nature of Armed conflict has evolved from mostly In international Armed Conflict, the level of violence required
intrastate affairs ought with relatively low technology in and around to trigger an international armed conflict is significantly lower.
communities. A new pattern of armed conflict had emerged, taking The Non-International Armed Conflict on the other hand, the
increasingly heavy tolls on communities and civilian populations.  level of violence required to trigger a non-international armed
conflict is significantly higher. Further in an NIAC, the criteria of
It is important to determine the nature of armed conflict since this the threshold of violence and the degree of organization of the
will determine whether or not the International Humanitarian Law armed group distinguish situations of non-international armed
applies. The failure to classify a state of affairs as an ‘armed conflict’ conflicts from situations of internal disturbances, riots,
has grave legal and humanitarian consequences. This is because, terrorism, or high criminality that are not subject to
international humanitarian law has a close relationship with human international humanitarian law. If the threshold or organization
rights law that aims to protect the rights and dignity of civilians during criteria are not fulfilled, the situation does not amount to a non-
peace and armed conflict with parties of the conflict having legally international armed conflict
binding obligations concerning the rights of persons not involved in
the conflict An internationalized armed conflicts as compared to Non-International
and International armed conflict, is not considered as a legal
Also, as the application of IHL depends on the existence of an expression and as such it does not imply a third category of armed
international or non-international armed conflict, knowing when such Conflict.
situations exist is of key importance. Further, under the provisions of
the IHL with regard to armed conflicts, not all rules apply are Examples of Situations where international Armed Conflict is present
applicable to both types of conflict, it is essential to determine what include the situation in Syria where they currently involved in multiple,
actually constitutes each of the two types of armed conflict. parallel international armed conflicts (IACs) against the so-called
‘Global Coalition’ (led by the United States), Turkey, and Israel. It is
3. Distinctions between IAC, NIAC, and internationalized armed worth recalling that Turkey is occupying parts of the northern territory
conflict of Syria, while Israel has been occupying the Golan Heights since
1967.
4. Definition of IAC. Elements of IAC. Situations where IAC is Under article 1 of the Additional Protocol II, Non-International
present.  Armed Conflict is defined as conflicts, which take place in the territory
of a High Contracting Party between its armed forces and dissident
An International Armed Conflict it is defined under common Article 3
armed forces or other organized armed groups which, under
of the Geneva Convention as conflicts or cases of declared war or of
responsible command, exercise such control over a part of its territory
any other armed conflict which may arise between two or more of the
as to enable them to carry out sustained and concerted military
High Contracting Parties, even if the state of war is not recognized by
operations and to implement this Protocol
one of them. Apart from regular, inter-state armed conflicts, Additional
Protocol I extend the definition of IAC to include armed conflicts in
There are thus two core elements constituting a non-international
which peoples are fighting against colonial domination, alien
occupation or racist regimes in the exercise of their right to self- armed conflict:
determination (wars on national liberation).
There are two elements that must be present in the existence of an a) Protracted armed violence is taking place, meaning a
International Armed Conflict, these are; certain intensity of the armed violence
a) The legal status of the belligerent Parties. b) The actors taking part in it must exhibit a certain
Legal status refers to legal personality or the capacity to have
degree of organization.
rights and bear responsibilities under a legal system

b) The nature of the confrontation between them. These two criteria in a non-International armed conflict are considered
since there is a general prohibition against the use of force to be closely related. The existence of one of any of the criteria
between States, it is generally presumed that any use of such indicates that presence of the other. For example, if there are intense
military force which is governed by IHL is attributable to armed confrontations between groups or between state forces and an
deliberate belligerent intent. This is regardless of the factors armed group, this may indicate that these groups have reached the
leading to the use of force or its degree of intensity. As held in required degree of organization. f the criteria are not met by a
one case that was decided by the International Criminal situation, there is no armed conflict.
Tribunal, even minor instances of armed violence, such as an Examples of recent non-international armed conflicts include the
individual border incident or capture of a single prisoner, may hostilities that broke out in northern Mali in early 2012 between armed
suffice to cross the threshold for IHL to apply. In order to groups and the Malian armed forces, and the fighting in Syria between
distinguish an armed conflict, in the meaning of common armed groups and Syrian government forces.
Article 3, from less serious forms of violence, such as internal
disturbances and tensions, riots or acts of banditry, the
situation must reach a certain threshold of confrontation. The 6. Definition of Internationalized armed conflict (explain when
hostilities must reach a minimum level of intensity this is classified as NIAC or IAC).
A second armed conflict recognized by international humanitarian
5. Definition of NIAC. Elements of IAC. Situations where NIAC law is a new phenomenon known as an “internationalized” armed
is present.  conflict. These are armed conflicts which is subject to foreign
intervention and are considered as a special form of armed conflict,
sometimes, also less accurately referred to as “internationalized”
armed conflicts.
The situation of an internationalized armed conflict can occur when
a war occurs between two different factions fighting internally but
supported by two different states. The armed confrontations between
the intervening State and the territorial State will automatically trigger
the applicability of IHL governing international armed conflicts. The
confrontations between the territorial State and the insurgency, on the
other hand, will retain their non-international character and continue to
be governed by IHL applicable to non-international armed conflicts. In
terms of applicable law, this results in the coexistence of an
international and a non-international armed conflict, a situation that is
sometimes also referred to as “double classification.”
In an internationalized Armed Conflict, it merely describes situations
of one of the classifications of Armed conflict (non-international armed
conflict) with a dimension that is said to be international because of
two reasons.
a) The hostilities must reach a minimum level of intensity. This
may be the case, for example, when the hostilities are of a
collective character or when the government is obliged to use
military force against the insurgents, instead of mere police
forces.

b) Non-governmental groups involved in the conflict must be

considered as "parties to the conflict", meaning that they
possess organized armed forces. This means for example that
these forces have to be under a certain command structure
and have the capacity to sustain military operations.
The most visible example of an internationalized armed conflict was
the conflict in the Democratic Republic of Congo in 1998 when the
forces from Rwanda, Angola, Zimbabwe and Uganda intervened to
support various groups in the DRC
  under the provision of the Hague Regulations, it is already
recognized that the laws and duties of war are not exclusive to
the armed forces.

But they are also applicable to irregular militia and volunteer corps
provided that they fulfilled 4 conditions in assimilating them to regular
armed forces
CHAPTER 3
- commanded by a person responsible for his subordinates;
three most fundamental maxims of IHL relevant to the conduct of hostilities - they had a fixed distinctive emblem recognizable at a distance;
are as follows: - they carried arms openly;
1. the only legitimate object which States should endeavour to - they conducted their operations in accordance with the laws and
accomplish during war is to weaken the military forces of the enemy” customs of war
2. in pursuing this aim, “the right of the Parties to the conflict to choose
methods or means of warfare is not unlimited”; B. Levee en masse
3. the civilian population and individual civilians shall enjoy general  Describe the inhabitants of a non-occupied territory who, on the
protection against the dangers of arising military operations approach of the enemy, spontaneously take up arms to resist the
invading forces without having had time to form themselves into
the doctrine of Distinction regular armed units, provided they carry arms openly and
respect the laws and customs of war.
Under the principle of distinction, all involved in the armed conflict must
distinguish between the persons thus defined (the combatants) and civilians.  As soon as a levée en masse becomes continuous and
Combatants must distinguish themselves (i.e., allow their enemies to identify organized, it is no longer regarded as such, but as an organized
them) from all other persons (civilians), who may not be attacked nor directly resistance movement.
participate in the hostilities.
 Individual involvement in a levée en masse is based on
The main aim of this principle is to entail a duty to avoid or in any event spontaneous and unorganized “participation” in hostilities, and
minimize the infliction of incidental death injury or destruction on persons and not on “membership,” which would imply a minimum of continuity
objects protected against direct attack. Or mainly to avoid collateral damage. and organization.

1. Distinction between combatants and civilians C. Combatant status and combatant’s privilege
 The most important consequence associated with combatant
Combatants are members of the fighting forces of the belligerent parties. all status is the loss of civilian status and of protection against
members of the armed forces of a party to an international armed conflict are direct attack.
combatants, except medical and religious personnel assuming exclusively
 combatant status entails the “combatant’s privilege,” namely
humanitarian functions
“the right to participate directly in hostilities” on behalf of a party
to an international armed conflict.
Not included in the definition of Combatants are those persons that are
participants in a levee en masse.
D. Unprivileged” or “unlawful” combatants
 Persons fighting outside these categories such as mercenaries
 Not everyone taking up arms in an international armed conflict
or civilians taking a direct part in hostilities.
necessarily qualifies for the privilege of combatancy. Members
of the armed forces may lose that privilege for failing to
A. Members of the armed forces
distinguish themselves from the civilian population
 all organized armed forces, groups and units which are under a
 is used to refer to an individual who directly participates in an
command responsible to that Party for the conduct of its
international armed conflict but who either does not have or
subordinates
has lost their combatant status. As a result, they are not
 entitled to combatant privilege (i.e. immunity from prosecution
for lawful acts of war) and do not benefit from prisoner of war “attacks” refers not only to offensive operations, but includes all “acts of
status if they fall into enemy hands. Sometimes the term is violence against the adversary, whether in offence or in defence
equally used to designate (fighting) members of a non-state
armed group in a non-international armed conflict. b) Acts of terror
 They are combatants that are not protected against direct While it is clear that any military operation affecting civilians is likely to induce
attack a certain amount of fear and anxiety among the civilian population, IHL
 a person who directly engages in armed conflict in prohibits acts or threats of violence the primary purpose of which is to
violation of the laws of war and therefore is claimed to not spread terror among the civilian population
be protected by the Geneva Conventions.
 mercenaries, private contractors,136 civilian intelligence c) Indiscriminate attacks
Indiscriminate attacks mean - These are attacks which are of a nature to
agents, organized criminals, other civilians – may directly
strike military objectives and civilians and civilian objects without distinction,
participate in hostilities without being entitled to the privilege in
either because they are not or cannot be directed at a specific military
the first place.
objective or because their effects cannot be limited as required by IHL
 The term “unlawful combatant” is used to refer to an individual
who belongs to an armed group, in a context where either the
Example:
individual or the group do not fulfil the conditions for combatant
- Carpet bombings
status therefore they do not entail any status and loss of
- Use of landmine
protection under the IHL
 Members of the armed forces may lose that privilege for failing
to distinguish themselves from the civilian population d) Human Shields
 Except those person who are considered as mercenaries,135 IHL also prohibits belligerent parties from using civilians as “human shields.”
private contractors,136 civilian intelligence agents, organized it is prohibited to use the presence or direct the movement of the civilian
criminals, other civilians – may directly participate in hostilities population or individual civilians in order to attempt to shield military
without being entitled to the privilege in the first place. objectives from attack, or to shield, favour or impede military operations.
b) Concept of proportionality, precautions, and presumptions e) Non reciprocity and prohibition of attacks by way of reprisal
c) Means and Methods of warfare All of the mentioned attacks are subject to the prohibition of non reciprocity
d) Special thematic areas on non-international armed conflict meaning that if the other belligerent party conduct such prohibition, it does
not give the other party to retaliate by doing such prohibited attacks aginst
2. DEFINITION OF CIVILIANS AND CIVILIAN POPULATION them.
Civilian population - is negatively defined as comprising all persons who 4. CIVIILIAN PARTICIPATION IN HOSTILITIES
are neither members of the armed forces of a party to the
conflict nor participants in a levée en masse. Basic rule:
civilians are entitled to protection against direct attack, “unless and for such
The definition also includes civilians accompanying the armed forces without time as they take a direct part in hostilities.
being incorporated therein, such as war correspondents and as a general
rule, private contractors and civilian intelligence or law enforcement The problem arises in this case is that the IHL does not provide any definition
personnel of conduct that amounts to direct participation in hostilities nor can a clear
interpretation of the concept be derived.
3. SPECIFIC PROHIBITIONS UNDER THE PRINCIPLE OF DISTINCTION\
Meaning of “direct participation in hostilities”
a) Direct attacks
The most direct emanation of the principle of distinction is, of course, the direct participation in hostilities comprises two basic components:
prohibition of direct attacks against civilians.
 a) that of “hostilities” - hostilities” refers to the collective recourse by entire duration of their membership, with the sole exception of those
belligerent parties to means and methods of warfare who are hors de combat.
b) that of “direct participation” therein - refers to the individual
involvement of a person in these hostilities.
INTERPLAY BETWEEN THE CONDUCT OF HOSTILITIES AND THE LAW
Under participation, the quality and degree of such involvement, individual ENFORCEMENT PARADIGMS
participation in hostilities may be described as “direct” or “indirect.
a) Direct participation refers to specific hostile acts carried out as part of civilian support for the enemy does not amount to direct participation in
the conduct of hostilities between parties to an armed conflict and hostilities does not mean that such support is necessarily lawful, or
leads to loss of protection against direct attack that no measures can be taken to prevent, suppress or punish such support

direct participation in hostilities, a specific act must meet all the following Given that the civilians concerned remain protected against direct attack, any
requirements: use of force against them must comply with the more restrictive rules of the
law enforcement paradigm
first, the harm likely to result from the act must be either specifically military in
nature or involve death, injury or destruction (threshold of harm); PROTECTION OF CIVILIAN OBJECTS, AND OF CERTAIN AREAS AND
INSTITUTIONS
second, there must be a direct causal relation between the act and the
expected harm (direct causation); a) Military objectives and civilian objects

third, the act must be an integral part of the hostilities occurring between Civilian Objects
parties to an armed conflict and must, therefore, aim to support one These are objects that are not military objects
belligerent party to the detriment of another
(Belligerent nexus). Military Objects
Those objects which by their nature, location, purpose or use make an
b) indirect participation may contribute to the general war effort, but effective contribution to military action and whose total or partial destruction,
does not directly harm the enemy and therefore does not entail loss capture or neutralization, in the circumstances ruling at the time, offers a
of protection against direct attacks. definite military advantage.

It must meet two criteria’s

Civilian Participation vs Unprivileged Combatancy First, it must contribute effectively to the adversary’s military action (as
 “Unprivileged combatancy,” which has no meaning under IHL.while opposed to mere policy objectives or the war-sustaining capabilities of the
civilian participation has meaning under the IHL enemy), and it has to do so by its
 both civilians directly participating in hostilities and members of the 1. “nature” (e.g. the intrinsically military characteristics of weaponry),
armed forces not entitled to the combatant privilege may be lawfully 2. “location” (e.g. a physical obstacle impeding military operations),
attacked, and both may also be prosecuted for lawful acts of war that 3. “purpose” (e.g. the intended future use of an ammunition factory
constitute an offence under the applicable national law. under construction),
 civilians directly participate in hostilities on a merely spontaneous, 4. or current “use” (e.g. a building being used as a sniper position).
sporadic or unorganized basis, whereas
 unprivileged” members of the armed forces do so on an organized Second, an object making an effective contribution to the enemy’s military
and continuous basis action can qualify as a military objective only if its destruction, capture or
 Therefore, civilians directly participating in hostilities lose their neutralization also offers the attacker a definite military advantage.
protection against direct attack only for the duration of each specific
hostile act, whereas, in principle, both privileged and unprivileged definite” that the advantage must be concrete and perceptible, and not
members of the armed forces may be directly attacked for the merely hypothetical or speculative.
Dual-use objects likely have catastrophic humanitarian consequences for the surrounding
almost any civilian object can be used for military purposes and can therefore civilian population and objects
be a military objective for the duration of such use
However, even dams, dykes and nuclear power stations that qualify as
Objects simultaneously used for civilian and military purposes are particularly military objectives, as well as other military objectives located in their vicinity,
problematic. must not be attacked if such attack can cause the release of dangerous
1. logistical infrastructure (roads, bridges, railways, ports and airports), forces and consequent severe losses among the civilian population.
power plants, and electricity and communication networks. To the
extent that a specific dual-use object makes an “effective
contribution” to the enemy’s military action and its destruction,
neutralization or capture offers a definite military advantage, it
qualifies as a military objective regardless of its

b) Specially protected objects

Cultural property
he 1954 Hague Convention on Cultural Property and its two Protocols of
1954 and 1999. Additional Protocols I and II also contain provisions
protecting cultural property.159

In IHL, cultural property is defined as comprising

essentially any secular or religious movable or immovable property of great
importance to the cultural heritage of all people, such as monuments of
architecture or history, archaeological sites, works of art, books, museums,
and libraries and other buildings containing cultural property.

In order to facilitate its identification, cultural property protected under IHL

should be marked with the emblem of the 1954 Convention, a down-
ward pointed blue square shield on a white background.

Can this protection be derogated?

imperative military necessity and if there is no feasible alternative available to
obtain a similar military advantage n no case, however, may cultural property
be attacked unless it has, by its function, been turned into a military objective.
Moreover, any such attack must be ordered by a commanding officer and,
whenever circumstances permit, preceded by an effective
advance warning.

(1) represents cultural heritage of the greatest importance to humanity;

(2) enjoys the highest level of protection in domestic law;
(3) is not used for military purposes or to shield military sites and has
been formally declared not to be intended for such use

Works and installations containing dangerous forces

Certain installations, namely dams, dykes and nuclear power stations, are
specially protected from attack because their partial or total destruction would
 The treaty definition of the wounded, sick and shipwrecked only covers
persons refraining from any act of hostility, but it does not require actual
incapacitation of the persons in question by wounds, sickness or shipwreck.
For military personnel and others who have directly participated in hostilities,
THE WOUNDED, THE SICK, AND THE SHIPWRECKED refraining from acts of hostility is also a precondition for being recognized as
hors de combat.
SCOPE OF PERSONAL PROTECTION
Thus, a wounded person who continues
Original Treaty under IHL – limited only to protection to wounded, sick and or resumes fighting the enemy is neither hors de combat nor protected as
shipwrecked members of the armed forces a wounded person within the meaning of IHL

The Geneva and Hague Conventions - expanded their protective scope to RESPECT, PROTECTION AND CARE
“other persons officially attached” to the fleets or armies of belligerent parties.
The wounded, sick and shipwrecked must be respected and protected in all
Additional Protocols I and II of 1977 - the concepts of “wounded,” “sick” circumstances and wherever they are.
and “shipwrecked” were finally defined as including all persons irrespective of
their military or civilian status. Respect - denotes a duty to refrain from attack, abuse or any other act likely
to cause danger or injury
DEFINITION
Applicable not just to armed forces but also to civilians
Wounded and sick - persons, whether military or civilian, who, because of
trauma, disease or other physical or mental disorder or disability, are in need Protect - always implies a positive obligation to shield the persons in
of medical assistance or care and who refrain from any act of hostility. question from harm and to proactively safeguard their rights. In the case of
the wounded, sick and shipwrecked, the duty to protect also requires that
Also include are those maternity cases, new-born babies and other persons they be searched for and collected, whereas the provision of medical care is
who may be in need of immediate medical assistance or care, such as the regarded as a conceptually separate, additional obligation
infirm or expectant mothers, and who refrain from any act of hostility tailored to the specific needs of these categories of person

Shipwrecked - persons, whether military or civilian, who are in peril at sea or  whenever feasible, each party in the armed conflict must search for,
in other waters as a result of misfortune affecting them or the vessel or collect and evacuated the wounded sick and shipwreck rom the zone
aircraft carrying them and who refrain from any act of hostility. These of hostilities, or from besieged or encircled areas, and protect them
persons, provided that they continue to refrain from any act of hostility, shall against ill-treatment and pillage
continue to be considered shipwrecked during their rescue until they
acquire another status under the Conventions or this Protocol MEDICAL AND RELIGIOUS PERSONNEL

Under protocol 1 – as to medical personnel - must have access to the wounded and sick on
Provisions aiming to protect the wounded, sick and shipwrecked apply to all the battlefield, must be protected against all acts of hostility and must be
persons affected by a situation of international armed conflict, without any allowed to perform their medical or religious functions without impediment
adverse distinction founded on race, colour, sex, language, religion or belief, even if they fall into the power of the enemy
political or other opinion, national or social origin, wealth, birth or other status,
or on any other similar criteria. Medical personnel - military or civilian persons who have been formally
assigned by a party to a conflict to one of the following purpose
applicable in all armed conflicts

PERSONS OR SOLDIERS NOT TAKING PART IN HOSTILITIES

  medical purposes stricto sensu, i.e. the search for, collection, organizations, medical units or medical transports of a party to a conflict, or
transportation, diagnosis or treatment of the wounded, sick and to medical units or transports seconded to a party to a conflict by neutral
shipwrecked, or the prevention of disease; States or humanitarian organizations.

 the administration of medical units, or the operation or administration How to qualify as religious personnel
of medical transports. concerned must be exclusively devoted to their ministry and may not fulfill
any other functions, regardless of the religion to which they belong. They do
not have to be incorporated in the armed forces and can therefore
Categories of Medical Personnel’s retain their civilian status, but they must necessarily be attached to a
1. Medical personnel of a party to a conflict: military, civil defence or medical service officially recognized and authorized
he permanent and temporary medical personnel of the armed forces, the by a belligerent party.
navy and the merchant marine, but also the medical personnel
and crews of hospital ships. PROTECTION

2. Medical personnel of National Societies or other voluntary aid a) Duty to respect and protect
societies: Personnel exclusively assigned to medical and religious duties must be
includes personnel of National Societies or other national voluntary aid respected and protected in all circumstances.This means that medical and
societies duly recognized and authorized by the belligerent parties. religious personnel may not be directly attacked, threatened or hindered in
their activities, but also that they and their particular role must be actively
NOTE: protected and supported by the belligerents
In order to be regarded as “national,” such societies must be established in
the territory of the belligerent party concerned; in order to be “recognized,” NOTE:
they generally must be constituted in accordance with national law and The protection afforded with the medical and religious personnel’s are not
regulations; and they can be considered as “authorized” by a belligerent party considered a s special privilege. but a derivative of the protection afforded to
when they are officially permitted to employ medical personnel on its behalf the wounded, the sick and the shipwrecked.
and under its military laws and regulations
Therefore, medical and religious personnel lose their special protection
3. Medical personnel seconded by neutral States or humanitarian pursuant to the same principles as medical units, namely if they commit,
organizations: outside their humanitarian function, acts harmful to the enemy.
comprises medical personnel of medical units or transports made available to
a party to the conflict for humanitarian purposes b) Status upon capture
- by a neutral or other non-belligerent state not to be regarded as prisoners of war irrespective of whether they are
- by a recognized and authorized aid society of such a State; or civilians or members of the armed forces.
- an impartial international humanitarian organization
Medical and religious personnel of enemy nationality may be retained to the
Official assignment versus spontaneous charity - Only persons who have extent required to meet the medical and spiritual needs of prisoners of war,
been formally assigned to medical duties by a belligerent party qualify as but must be released as soon as their services are no longer indispensable
medical personnel in the technical sense for that purpose

Other persons performing medical functions are generally protected as c) Duty to provide help and assistance
civilians, but are not entitled to use the distinctive emblems and do not enjoy To fulfil their important humanitarian mission, medical and religious
the special rights and privileges of medical personnel on the battlefield or personnel need more than special respect and protection
when they fall into enemy hands.
- They must be also accorded with support and assistance they may require in
As to religious personnel - military or civilian persons, such as chaplains, the circumstance at hand.
who are exclusively engaged in the work of their ministry and who are
permanently or temporarily attached to the armed forces, civil defence
IHL requires that civilian medical personnel be granted access to any place
where their services are essential. Must locate the such units, through the principle of distinction and
precaution and the exercise of non-reciprocity
security measures restricting access for civilian medical personnel to the
wounded, the sick and the shipwrecked must be carefully considered and, In case of captured, the personnel must be permitted to pursue their duties
wherever possible, accompanied by measures alleviating the humanitarian until capturing party ensures the necessary care of the wounded and sick
consequences of such restrictions. For example, in a medical emergency, a found in the establishments and units
belligerent party may have to delay the interrogation of a wounded or sick Loss of protection due to acts harmful to the enemy
person in order to allow evacuation or treatment as required by his or her The special protection of medical units ceases when they are used to
medical condition. commit, outside their humanitarian function, acts harmful to the enemy.

d) Protection of medical ethics According to the Commentary on the Geneva Conventions, hiding able-
bodied combatants, arms or munitions, deliberately impeding military action,
Additional Protocol it emphasizes that no one may be prevented from or serving as a military observation post are sufficient cause to lose special
performing acts required by the rules of medical ethics or punished for having protection
done so. Likewise, persons engaged in medical activities may not be
compelled to violate the rules of medical ethics For medical units, loss of special protection does not, however, necessarily
entail loss of protection against direct attack. While such medical units are no
longer entitled to special support or protected from interference with their
MEDICAL UNITS AND TRANSPORTS work, they remain protected against direct attack unless their use also turns
them into military objectives or, in the case of personnel, unless and for such
Protection of medical units time as their conduct amounts to direct participation in hostilities
In safeguarding the medical mission for the benefit of the wounded, the sick
and the shipwrecked, IHL protects not only medical and religious personnel, Protection of medical transports
but also medical facilities, transports, equipment and supplies used for the protection of the wounded, the sick and the shipwrecked often depends
medical purposes. on the respect and protection afforded to the means of transport used to
rescue them, evacuate them from danger zones and take them to hospitals
What are medical units? or other medical facilities where they can receive the requisite medical
include all establishments and other units, whether military or civilian, fixed or assistance and care.
mobile, permanent or temporary,
medical transports
- they must be organized for medical purposes, namely the search for, means of transportation, whether military or civilian, assigned exclusively to
collection, transportation, diagnosis or treatment of the wounded, the transportation of the wounded, the sick and the shipwrecked, of medical
sick and shipwrecked, or for the prevention of disease; and religious personnel, and of medical equipment or supplies protected by
- they must be exclusively assigned to such purposes by a party to the IHL
conflict.
these may include,
NOTE 1. ambulances
The definition includes hospitals, blood transfusion centers, preventive 2. hospital ships
medicine centers medical depots and drug stores 3. medical aircraft

Scope of protection Scope of protection

Military medical units, and civilian medical units recognized and authorized unless otherwise regulated, all medical transports benefit from the same
by one of the belligerent parties, must be respected and protected at all protection as mobile medical units. Accordingly, all medical transports
times. They may be neither directly attacked nor used to shield military exclusively assigned to medical transportation must be respected and
objectives from attacks. protected in all circumstances. This means that medical transports may
legitimately be searched by belligerent parties, but cannot be directly administration of such zones and localities and with the care of
attacked or arbitrarily obstructed in their humanitarian work. the wounded and sick
2. neutralized zones - which aim to provide protection and shelter in
It can be lost through the combat area itself. extend the same protection to particularly
lose their special protection only if they are being used, outside their vulnerable groups within the civilian population, namely aged
humanitarian function, to commit acts harmful to the enemy. persons, children under 15, expectant mothers and mothers of
children under seven
Hospital ships and coastal rescue craft
Hospital and safety zones and localities
Hospital ships - are ships built or equipped specially and solely with a view
to assisting, treating and transporting the wounded, the sick and the Neutralized zones - Neutralized zones are generally temporary in nature
shipwrecked. They may be military or civilian, and can carry military or and are established in the actual combat zone to protect the wounded, the
civilian patients, but must belong to, be commissioned by, or be seconded to sick and peaceful civilians from the dangers arising from the surrounding
a belligerent party hostilities.

the ship must be marked and may be inspected and searched by the The establishment of such zones may be initiated by the belligerent parties or
belligerent parties, but must be respected and protected at all times. In may be may also be proposed by the ICRC based on its general right of
particular, unlike medical units and other means of medical transportation, humanitarian initiative.
hospital ships may not be captured or requisitioned by the enemy.
Locality – refers to specific, well-delimited places, such as buildings or
While warships may demand that hospital ships hand over wounded, sick camps.
and shipwrecked military personnel, civilian patients may not be surrendered Zone
except to their country of origin. Hospital ships must assist the wounded, the - refers to a relatively large area and may include one or several localities.
sick and the shipwrecked without distinction of nationality or allegiance.
Protection
coastal rescue craft - operated by belligerent parties or by officially While the 1949 Geneva Conventions do not expressly specify the scope of
recognized lifeboat institutions enjoy the same protection as hospital protection afforded to hospital, safety or neutralized zones and localities, it is
ships. generally accepted that attacks against such zones are prohibited under
customary IHL
Medical Aircrafts - military or civilian aircraft that are exclusively assigned to
medical transport under the authority of a belligerent party, whether Three distinctive emblems
permanently or temporarily. They must be marked with red cross, the red crescent and the red crystal on a white ground.
the distinctive emblem on their lower, upper and lateral surfaces.
The original and principal purpose of the distinctive emblems is to provide a
HOSPITAL, SAFETY AND NEUTRALIZED ZONES visible sign of the protection to which medical personnel and objects are
entitled.
provides for the establishment, always with the agreement of all the
belligerents involved, of special zones and localities for the protection of the General rule - medical and religious personnel must wear an armlet
wounded, the sick and other particularly vulnerable groups from the effects of displaying the distinctive emblem, and medical units and transports must fly
war. distinctive flags or otherwise display the distinctive emblem.

Two types of zones or localities Protective use by medical personnel, units and transports
1. hospital and safety zones - which should be at a safe distance Original and principal purpose of the distinctive emblems is to provide a
from the hostilities, organized specifically with the aim of visible sign of the protection to which medical personnel and objects are
protecting the wounded and sick from the effects of war. Also entitled. The protective use of the distinctive emblems is restricted to medical
protected are personnel entrusted with the organization and units and transports, and to medical and religious personnel, equipment and
supplies within the meaning of IHL
Obligation with death
THE MISSING AND THE DEAD
Search and evacuate the dead
IHL obliges belligerent parties to search for and provide all available Legal duty to record any available information
information on dead and missing persons, and to ensure that mortal remains Decent burial and marking graves
and gravesites are treated with respect and that all available information Repatriation of mortal remains – mortal remains and personal effects
about mortal remains and the location of gravesites is recorded.

Obligation regarding Missing

Missing Person - the term is generally understood as including all persons,

whether civilian or military, whose whereabouts are unknown to their relatives
and who, on the basis of reliable information, have been reported missing in
connection with an armed conflict.

Separation - IHL stipulates that all persons in territory controlled by a

belligerent party must be enabled to exchange news of a strictly personal
nature with their family members, wherever they may be, if necessary
through an intermediary such as the Central Tracing Agency run by the
ICRC.

belligerent parties must facilitate enquiries made by members of dispersed

families with a view to re-establishing family links and, if possible, to
reunification.

Belligerent parties must also ensure that orphaned or otherwise

unaccompanied children under 15 are not left to fend for themselves. 12 Y/O
equipped with identity disk.

Deprivation of liberty
IHL therefore obliges the detaining power to forward information on any
captured, detained, wounded, sick or shipwrecked persons who have fallen
into its power to their families and authorities.

Detainees powers
Formally notify – detainer must notify capture
Capture or internment card – for each family
Respond to all inquiries -
Right to correspond with family

Death
to collect and identify their remains and to notify the appropriate authorities.
members of armed forces are more likely to be “missing in action” if they do
not carry identity discs or equivalent means of identification as required by
IHL.