1. Introduction to IHL: Application and Basic Principles
Kate Jastram, Berkeley Law
University of California
3 January 2012

2. Overview I. Jus in bello vs jus ad bellum II. Sources of the law
III. Fundamental principles
IV. When does IHL apply?
V. Jus ad bellum

3. I. Jus in bello vs jus ad bellum
Jus ad bellum – resort to force, when to go to war
Jus in bello – application of force, conduct of hostilities, how war should be fought

4. II. Sources Note on Terminology Jus in bello =
International Humanitarian Law (IHL) =
Law of War (LoW) =
Law of Armed Conflict (LOAC)

5. II. Sources Statute of the International Court of Justice, Art. 38(1):
(a) Treaties
(b) Customary international law
(c ) General principles of law recognized by civilized nations
(d) Judicial decisions and scholarly opinion, as subsidiary means

6. Key IHL Treaties 1949 Geneva Conventions I-IV
I: Wounded and Sick in Field
II: Wounded, Sick, Shipwrecked at Sea
III: POWs
IV: Civilians
Treatment of those hors de combat

7. Key IHL Treaties 1977 Additional Protocols
I: International Armed Conflict (IAC)
II: Non-international Armed Conflict (NIAC)
Supplement, not replace GCs.

8. Customary Int’l Law
ICJ Statute Art. 38: “general and consistent practice of states followed from a sense of legal obligation.”
Important because
CIL binds non-state as well as state actors
most IHL treaty law addresses IAC, not NIAC

9. Jurisprudence Domestic civil courts Military tribunals
International Court of Justice
Ad hoc tribunals
International Criminal Court

10. III. Fundamental Principles
Note on Origins
American Civil War
(Francis) Lieber Code 1863: first codification of LoW, done at request of President Lincoln.
Clara Barton: leader in bringing humanitarian aid to soldiers, founded American Red Cross 1881, instrumental in obtaining US accession to 1st GC in 1882.

11. III. Fundamental Principles
1. Distinction API:48
2. Military Necessity
3. Unnecessary Suffering API:35
4. Proportionality API:51(5)(b)

12. IV. When does IHL apply? a) Armed conflict defined Tadic, ICTY 1995
Resort to armed force between States OR protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.

13. IV. When does IHL apply?
b) IAC = Common Article 2 of GCs: all cases of declared war or of any other armed conflict between 2 or more of the High Contracting Parties
Same in AP1:1(3) plus (4) armed conflicts against colonial domination, alien occupation, and racist regimes

14. IV. When does IHL apply?
(c ) NIAC – Common Article 3 of GCs: armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.
If NIAC, only CA3 and CIL apply, possibly APII

15. APII:1(1)
Narrows definition of NIAC, by adding requirement of territorial control.
in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups 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.

16. None of the above?
d) What if situation does not rise to level of NIAC?
APII:1 (2) Not situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.
What law applies?
Domestic law and human rights law

17. V. Jus ad bellum Sources Main treaty – UN Charter, which outlaws war
ICJ decisions, and Security Council resolutions

18. UN Charter a) Art. 2(4) prohibits threat or use of force b) Exceptions
Art 42 SC authorization
Art 51 Self-defense elements
Purpose of self-defense
Response to armed attack
Against responsible party
Necessity and proportionality
Report to Security Council

19. Responsibility to Protect (R2P)
2005 UN World Summit Outcome Document
Genocide
Ethnic cleansing
War crimes
Crimes v humanity
Still need Security Council authorization

20. Use of Force c) Armed attack, and less grave forms
Nicaragua v US, ICJ 1986

21. Nicaragua case
Armed attack = Most grave form of use of force = Action by regular armed forces across int’l border, plus irregulars if of sufficient scale.
Response? Right of self-defense under art. 51: “Inherent right of individual or collective self-defense if an armed attack occurs, until Security Council acts.”

22. “Less grave forms”
Assistance to rebels, providing weapons or other support.
Organizing irregulars for incursion into another state; instigating acts of civil strife or terrorist acts in another state or acquiescing in the organization of such activities within territory.
Economic, political, or other coercive measures.
Computer network attacks.

23. Response
Less grave forms of use of force do not give rise to right of self-defense.

24. The End
Questions?
Thank you!