1. JAMR 20 Humanitarian Law - Introduction
Advanced introduction to Humanitarian Law for Human Rights Lawyers.
A course:
“About Restraint in warfare and how it is given legal force” (textbook) and
to understand how the laws of war work, what they do, or stand for. Thinking about the general meaning of IHL beyond specific rules.
Why is IHL important for human rights lawyers?
Course web page: Schedule, course material, group divisions, seminars:
questions?

2. Lecture overview:
Part 1 Figuring out how IHL people think: Dogma and Critique!
Part 2: IHL’s relation to
UN Charter (non-)use of force regime (jus ad bellum).
to human rights.

3. – IHL Dogma and Critique
Part 1
– IHL Dogma and Critique

4. IHL Dogma and Critique 1: Some Violence in war is legitimate
Dogma: some violence in war is legitimate, but only for some: privilege of belligerency – outer limits: genocide, terrorism, crimes against humanity and so on! Critique: e.g. What about the human rights of soldiers? Dogma: War unfortunate by-product of the existence of a society of states, IHL tames it to conform to IL’s broad humanitarian project. Critique: The laws of war not just regulative but constitutive! IHL part of the social construction and reproduction of war as a legitimate institution of international society. Mégret p. 774

5. Disagreement in the application of individual norms of IHL
IHL Dogma and Critique 2: Balancing of ”military necessity” and ”humanity” to limit war.
Textbook: ”The Law of armed conflict seems torn between two fundamentally contradictory impulses ...“ p. 26
Dogma: Balance between military necessity and humanity: from metanarrative all the way down to specific norms (example: unnecessary suffering, proportionality),
- Balance is supposed to be struck at the lawmaking level, not in application phase, except where room is given at the level of the norm (example: Add. Prot art and 5)
Critique: IHL is a virtual battlefield, structured inter alia through the struggle over dominance between ”military necessity” or ”humanity” – Between apology and Utopia (Mégret)
Disagreement about the nature of IHL, what to call it even! (compare textbook p ).
Disagreement in the application of individual norms of IHL
Disagreement on whether IHRL can be allowed to play a role in IHL
Etc…

6. IHL Dogma and Critique 3: Applicability
Special rules for special circumstances, a kind of ”emergency law” for IACS, NIACS and Occupation. Dogma: applies in situations of ”armed conflict” only (regardless of what parties say). Temporal scope of applicability, depending on type of conflict and the treaties to which the participants to a conflict are party. Spatial scope of applicability – all areas covered by the state of war, principle of effectiveness. Critique: BEWARE OF OVERAPPLICATION!!!

7. IHL Dogma and Critique 4: the Universality of humanitarianism
Dogma: The laws of war are universal, transcends international society’s pluralism Critique: Historically, and still sometimes today, evident that the universalism of the laws of war is relative, it is a universalism within a ”community of civilized nations” that does not extend to all warring parties (Mégret p. 764, 774). Critique: Divides in commitment to IHL’s key principles:

8. – Relation to UN Charter Use of Force Regime and IHRL
Part 2
– Relation to UN Charter Use of Force Regime and IHRL

9. Jus ad bellum and Jus in Bello relationship – Positive Law
Look at Additional Protocol 1 Preamble.
Dualism: any use of force may be simultaneously lawful and unlawful – equality of belligerents!
Structural reasons and pressures:
Dualism: Any use of force may be simultaneously lawful and unlawful:
Ad bellum not simply a concern at the start of hostilities and in bello during the armed conflict.
For example: jus ad bellum necessity and proportionality applies not only to the initial decision to resort to force but also to all conduct involving the use of force which occurs during the course of hostilities. That conduct must be necessary and proportionate to the casus belli.
Look at AP 1 Preamble!!!
Structural reasons and pressures:
If you conflate – Jus in bello will be at the disposal of considerations of jus ad bellum, but also the other way around.
You can also to an extent understand the pressure placed on this dualism. Is it fair to give greater leeway, in terms of transgression of IHL, to a state fighting against a genocidal enemy than one that is engage in a purely territorial dispute?

10. Jus ad bellum and jus in bello relationship – In History
Three historical epochs
Just War – 1800, - humanitarianism
War as state policy 1800 – 1919, + humanitarianism
Neo-just war? 1919 – present, - humanitarianism?
JUST WAR PERIOD:
HEYDAYS of the Jus ad bellum!
- No pardon, no holding back and no neutrality in wars between good and evil, right and wrong.
- Colonial outlook, the laws of war only applied in wars between Christians, not in wars with infidels.
WAR AS STATE POLICY PERIOD:
HEYDAY of the jus in bello or the regulation of the conduct of hostilities. To go to war, the prerogative of states, the right of sovereigns!
NEO-JUST WAR PERIOD to the present:
 A ban on war was introduced
the German Kaiser after the first world war for ”the crime of war” (jus ad bellum) as opposed to ”war crimes” (jus in bello)
subsequently in the 1928 Kellog-Briand Pact and the 1945 UN Charter proscribing the ”threat or use of force against …”What does a declaration of war mean in this context?
- Consequences for the dualism of jus ad bellum and jus in bello extremely significant:
The natural conclusion would appear to be that in wars in self-defence and UN Enforcement action (Chapter VII of the charter) there is no neutrality for third states and the laws of war does not restrict to the same extent the one who is fending off an aggressor or is involved in UNSC sanctioned force.
The side that would appear to have prevailed held that even though there no longer is such a thing as a declared state of war (subjective) but merely objectively observable retort to hostilities or “armed conflict”, the laws of war apply as special regimes applicable under such circumstances.

11. Jus ad bellum and Jus in Bello - The politics of the dualism
Although the dualism is universally accepted, it is far from consistently applied.
(non-) use of force paradigm displacing IHL: Special Court for Sierra Leone, Prosecutor Against Moinina Fofana and Allieu Kondewa.
IHL displacing the (non-) use of force paradigm
BP 1 EXAMPLE:
In 2007 two leaders of the ”Civil Defence Forces” were sentenced in the Special Court for Sierra Leone.
They were convicted of brutal crimes: mutilation, amputation, hacking civilians to death with machetes etc.
When determining the sentence, mitigating circumstances were invoked: the Special Court noted that the Civil Defence Force had fought for ”a legitimate cause”, to ”restore the democratically elected government” and ”facilitating the restoration of democracy peace and security” in Sierra Leone”,
This was precisely the objective that the UNSC sought to achieve by establishing the Special Court for Sierra Leone.
Why is this judgment problematic? the appeals chamber struck down on this on appeal!
BP 2 EXAMPLE – ”Israeli Ambassador: Here’s what ”proportionality” in War Really Means” – What’s wrong with this picture?

12. From a human rights perspective, what should be prioritized: stopping or taming wars?