PUR 420 – Lecture 2:

Sources of International Humanitarian Law:

o Article 38(1) (a) – (d) of the Statute of the International Court of justice:
(a) International conventions, whether general or particular, establishing rules
expressly recognised by the contesting states.
(b) International customs, as evidence of a general practice accepted as law.
(c) The general principles of law recognised by civilized nations.
(d) Judicial decisions and the teachings of the most highly qualified publicist’s pf the
various nations, as subsidiary mean for the determination of rules of law.
o Main sources of International Humanitarian Law.
- Treaties.
- Customary International Humanitarian Law.
Categorisation of Treaties:
o Subject matter.
- Protection of civilians and combatants.
o Methods and means of warfare.
- How do states acts when in an armed conflict and what time of weapons should
be used.
o Regulate naval and air warfare.
o Protection of cultural property.
- Certain places that cannot be bombed.
e.g. Universities and Museums etc.
o Regulate criminal repression of war times.
- Regulate the criminal aspects of the war.
e.g. Rome Statues → Crimes against humanity.
o Regulate international and not international conflicts.
Subject Matter Treaties:
o Geneva Conventions, 1949 – Protection of victims of armed conflicts:
1. To ameliorate the condition of the wounded and sick in armed forces in the
field.
2. To ameliorate the condition of the wounded, sick and shipwrecked member
of armed forces at sea.
3. To regulate the treatments of prisoners of war.
4. To protect civilians in time of war.
o Geneva Conventions are supplemented by Additional Protocols of 1977:
- Protocol 1 → The protection of victims of international armed conflicts.
(Interlinked with protection of cultural property and repression of war crimes).
- Protocol 2 → Protection of victims of non-intentional armed conflicts.
- Protocol 3 → ICRC deals with the types of embalms that can be used and are
recognised.
Methods and means of warfare Treaties:
o The Fourth Convention of 1907 – Respecting the Laws and Customs of War on Land
and its annexed regulations – Hague Conventions.
- The status of belligerents.
- The conduct of hostilities,
- The prohibitions of weapons ‘calculated to cause unnecessary suffering’.
- The termination of hostilities and rules governing military occupations.
o Certain Conventional Weapons Conventions, 1980:
- The purpose is to ban or restrict the use of specific types of weapons that are
considered to cause unnecessary or unjustifiable suffering to combatants or to
affect civilians indiscriminately.
o Supported by additional protocols:
- Protocol 1: Non – Detectable Fragments, 1980.
- Protocol 2: Mines, Booby Traps and Other Devices, 1996 (Amended).
- Protocol 3: Incendiary Weapons, 1980.
- Protocol 4: Blinding Laser Weapons, 1995.
- Protocol 5: Explosive Remnants of War, 2003.
Naval and Air Warfare’s Treaties:
o Hague Convention (X) for the Adaptation to Maritime Warfare and the Principles of
the Geneva Convention,1907.
o Protection of cultural property treaties:
- Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, 1954.
o Criminal repression of war crimes treaties:
- Rome Statue of the International Criminal Court, 1998.
International Armed Conflicts and Non-International Armed Conflicts:
o The International Humanitarian Law rules make a distinction between international
armed conflicts (IAC) and non-international armed conflicts (NIAC).
International Armed Conflicts:
▪ Tadic paragraph 70 - ‘An armed conflict exists whenever there is a resort to
armed force between States’.
- Article 2(1) of the Geneva Convention 1 – 4: International
Humanitarian Law applies ‘to all cases of declared war or of any other
armed conflict which may arise between two or more of the High
Contacting Parties, even if the state of war is not recognised by one of
them.
▪ Article 1(4) of Additional Protocol 1 – An international armed conflict is
extended to ‘armed conflicts in which peoples are fighting against colonial
domination, alien occupation and against racist regimes in the exercise of
self-determination.’
▪ National Liberation Movement required to deposit a declaration accepting
the obligations under the law of Geneva with the Swiss Federal Council; in
order to be protected under International Humanitarian Law.
Non – International Armed Conflicts:
▪ Tadic paragraph 70 – ‘An armed conflict exists whenever there is a protected
armed violence between governmental authorities and organised armed
groups or between such groups within a State’.
- Only Article 3, common to all Geneva Conventions and Additional
Protocol 2 apply to Non-International Armed Conflicts.
 - Additional Protocol 2 develops and supplements common article 3 of
the Geneva Conventions Article 1(1).
▪ Common Article 3 – Each party to the non-international armed conflict is
bound to accept, ‘as a minimum’, that persons taking no active part in
hostilities are to be treated humanely, without any adverse distinction based
on race, colour, religion or faith, sex, birth, or wealth.
▪ The wounded and the sick are also to be cared for.
▪ Parties to a non-international armed conflict are not entitled to the privilege
accorded to combatants in international-armed conflicts – however have no
right to be treated as prisoners of war.
o Additional Protocol 2 contains more detailed provisions on fundamental
guarantees, treatment of the wounded and sick and protection of the civilian
populations.
- However, it is more restricted than Common Article 3.
o Additional Protocol 2 applied only to armed conflicts which takes place in a party to
Additional Protocol 2 between its armed forces and dissident armed forces which,
under responsible command, ‘exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations and to
implement this protocol.
Applicability of Law of Treaties:
o Vienna Convention on the Law of Treaties, 1969 applies to:
- Treaty-making - Negotiations, conferences.
- Reservations.
- Successive treaties:
▪ International Humanitarian Law treaties contain specific provisions
which explain the relation to earlier treaties.
- Interpretation.
- Many International Humanitarian Law treaties contain provisions that explain
relations between states parties and third states.
- Termination of treaties.
Customary International Humanitarian Law:
o Two requirements of Custom:
- State practice (usus).
- Belief to be bound by rule (opinio juris).
o International Committee of the Red Cross mandared by the 26th Conference of
the Red Cross and Red Crescent, 1995, to engage in the study of customary
international humanitarian law.
- Look at 2 requitements to govern what the rules of customary international
humanitarian law.
Does not come up with the customary laws/rules they just combine the laws
and rules into one place → Under one umbrella definition.
o International Committee of the Red Cross → 161 Customary International
Humanitarian Law rules.