International Humanitarian Law (Jus in bello: the law of armed conflict)

Jus in bello

How: legal conduct during conflict

aka: the law of armed confict (LOAC)

aka: the international humanitarian law (IHL) (not human rights)

International Humanitarian

Law the regulates conduct of all belligerents during armed conflict (not just states- equal application)

Covers both international (IAC) and non int'l armed conflicts (NIAC)

*Irrespective of their legality: does not depend on depend on jus ad bellum

* Distinction is relevant: fewer NIAC rules

* e.g. no POW protection, shorter list of war crimes

Hague Law

Conduct of hostilities: means (e.g. weapons) and methods of warfare

*Combatants' rights + duties

e.g. "Hague Conventions"

*Hague Peace Conferences (1899, 1907)

(historically: LOAC)

Geneva Law

Protection of noncombatants + victims of conflict

*Civilians

* Hors de combat ("out of the fight")

*Wounded, sick, prisoners of war (POWs)

e.g. Geneva Conventions + Additional APs

(historically: IHL)

Geneva and Hague Law today

Form a unified= IHL

IHL, LOAC used interchangeably

Sources: both CIL + treaties (50+ multilateral treaties)

How is international humanitarian law unique in IL?

Actor centric, not state-centric

Key role of ICRC (drafts, interprets, moniters IHL)

Grave breaches in IHL

war crimes (possibly crimes against humanity)

* States can incur responsibility (IWA)

* But also part of int'l criminal law- individual responsibility

4 Geneva Conventions

1. Treatment of wounded/sick (original 1864)

2. Treatment of wounded/sick at sea (original: 1906)

3. Treatment of prisoners of war (original 1929)

4. Protection of civilians in wartime (1949)

Additional Protocols (APs) for Geneva Conventions

1. AP (1977): Protections of IACs

2. AP (1977): Protections of Victims of NIACs

Geneva Conventions relationship w/International Human Rights Law

Uneasy: regulates conduct during war; war involves killing- violates HRs

e.g. IHL allows lethal force (rather than, say, capture) when victim in question is a lawful target

While much of IHRL applies during conflict, IHL- a special HR regime during war

*Lex specialis- supersedes general rules

* IHL-HRs in armed conflict

*e.g. no torture, inhumane treatment, weapons causing unnecessary suffering; punishment without trial, etc.

* So, defining "armed conflict" is key: affects when/how IHL applies

* No agreed definition of AC

* Today: war/not war no longer straightforward (no "declarations")

Basic principle: distinction

"Distinction" between

* combatants (-lawful targets) vs. non-combatants ("civilians")

Basic rule of distinction

No targeting of civilians or civilian objects

*Incl. specifically protected and objects

* e.g. Medical (staff, hospitals, ambulances), religous, humanitarian relief, journalists

* No indiscriminate attacks (or weapons)

* Duty to take all feasible precautions to avoid/minimize civillian harm, verify targets

* Does not equal recklessness

Are civilian deaths lawful in war?

Yes. they are if principles are respected/

Military necessity

To achieve a legitimate military object

Military objectives

Must make an effective contribution to military action

*By the target's nature, location, purpose, use

* Dual use object (e.g. power grid

* Must offer a definite military advantage

* No speculative/hypothetical

Proportionality

In relation to anticipated military advantage

Humanity

No unnecessary suffering, access to humanitarian aid

Duty: proportionality, precautions

Attacks disproportionately harming civilians (i.e. excessive vs. the anticipated military advantage)= war crime

* If carried purposely or through recklessness

* (if only due to "negligence"- IHL violation but not a "war crime")

Fundamental guarantees for civilians and hors de combat (wounded, sick, POWS)

Humane treatment, mon-discrimination (race, gender, religion), no murder, no torture or cruel treatment, no corporal punishment, no mutiliation, no medical/scientific experiments, no sexual violence, no slavery or forced labot, fair trials, provisions of basic necessitiies (food, water) to POWs

Who is party to the Geneva Conventions?

All states without exception

Which countries has the APs?

Only US, India, Israel, Pakistan, Turkey not party (+ Syria, Iraq, Iran for AP 2)

Does it matter if US hasn;'t ratified the two 1977 APs?

Widely seen as customary

What if some belligerents refuse to follow IHL? Is the other side released from following IHL?

No: distinction between reciprocal and non-reciprocal

IHL largely nonreciprocal rules (not equal to inadimplenti non est adimplendum)

o Enemy executing civilians (war crime) does not equal you can kill civilians too

o Enemy using human shields does not equal abssolve you from precautionary and proprtionality duties

Int'l regulations of internal conflicts (NIACs)

Originally focused on IAC- today NIAC also regulated by IHL

o Important since most conflicts today are internal

1977 APs and NIACs

applies IHL to NIAC

o AP/1: "international" ACs said to include fights against colonial regime, alien occupation, or racist regimes

o AP/2: applies to NIACs not covered in Protocol 1

Original Geneva Conventions- Common Article 3

o Related to NIACs- "mini convention"

o Common to all 4 Geneva Conventions= binding on all states

o Prohibits murders of all kinds, mutilation, cruel treatment, torture

Outrages upon personal dignity, esp. humiliating and degrading treatment

Passing of sentences and carrying out of executions w/out judgement pronounced by a regularly constituted court, affording all the judicial gurantees

IHL and Israel-Hamas

Equal application to both sides

Possible war crimes: targeting civilians and civilian objects (residences, hospitals, power grid, water systems), starvation, taking of hostage, human shields, etc.

o Targeting on purpose or recklessness

o vs. negligence (not war crime, but unlawful- violation (but not "grave breaches") of IHL- feasible precautions)

o Even if "fair "warning

Distincintion: combatants vs. civilians

o Even if objectionable/illegal- still civillians (e.g. settlers. Hamas civilians wing, supporters

o "Complete siege"- incidental harm to civilians (no electricity, no food, no water, no fuel)

complete siege

Incidental harm to civilians (no food, electricity, water, or fuel)

Unlawful forcible displacement vs lawful evacuation

Lawful if (1) forced to protect civilians, (2) military necessity

Implementation and enforcement of IHL

Duty to implement IHL in domestic law

o Instructions to armed forces, legal advisors, supervision, command responsibiltiy, criminal sanctions for violations

o e.g. duty to disobey illegal orders

o Lack of training/ignorance: not an excuse

Enforced in domestic courts

o E.g. Hamdan (U.S.C., 2006): US violated both UCMJ and Geneva Conventions esp. Common Article 3

International legal mechanisms

State responsibility under IL for violations committed by their armed forces (control)

International Criminal Court (ICC)

Individual criminal responsibility for war crimes or crimes against humaity

Both armed forces and irregulars

ICJ

Certain treaties w/juridictional clauses (e.g. Genocide Convention, Convention against Torture

UNSC: Chapter VII resolutions

e.g. UNSC Res. 2585 (July 2021): enforced cross-border humanitarian access in Syria

cf. US veto (Israel-Hamas)- Sept. 2025

ISRC (controlling authority)

o Authoritative interpretation of IHL

o Monitors compliance

o Educated actors about how to implement IHL