lecture 1 ihl07 1 slides

7/28/2019 Lecture 1 IHL07 1 Slides

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International Humanitarian

LawThe Law of Armed Conflicts

Associate Professor Gro Nystuen [email protected]


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Practical information

JUR5739 International Humanitarian Law

(The Law of Armed Conflict):

www.uio.no/studier/emner/jus/jus/JUR5730/index.xml

Autumn 2007:

Time and place (teaching) (Corr.:11 Oct.: 14.15 16.00) Syllabus (achievement requirements)

Course outline

Reading Assignment
http://www.uio.no/studier/emner/jus/jus/JUR5730/index.xmlhttp://www.uio.no/studier/emner/jus/jus/JUR5730/index.xml


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Lecture 1

Introduction to IHL course:

Overview of the course Terminology

International law

Jus ad bellum andjus in bello

Brief history of IHL

Main sources of IHL


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Overview

1. Introduction

2. Main Principles of IHL

3. Applicability and Scope4. Group work

5. Methods in armed conflict

6. Means in armed conflict

7. Protection (Civilians andPrisoners of war)

8. Grave breaches/Individual criminalresponsibility

9. Asymmetrical warfareand direct participation inhostilities

10. a) Cultural property

b) National implementation

of IHL11. Group work (The heavy

water sabotage actions)

12. IHL and Human Rights

13. Armed conflicts and the

war on terror14. Peace Support

Operations: which rulesapply?

15. Group work/exam

preparation


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Introduction

Terminology: International Humanitarian Law (IHL)

Law of Armed Conflict (LOAC)

International Human Rights Law

International Refugee Law International Criminal Law


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International Law

The law that regulates the relationship between States

States are the core subjects of international law - - stateshave rights and obligations under international law

International organisations can be subjects ofinternational law

Individuals can to a certain extent be subjects underinternational law


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Examples of International law areas:

Trade Customs

Outer space

Airspace

Sea Disarmament

Waterways

Post

Environment Reindeer fences

International Peace


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What is a State?

Territory

Population

Control/jurisdiction on territory

Sovereignty

All states are sovereign All states are therefore formally equal


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Autonomy and authority

State

State

State

StateState

State

State

State

L+E

Individuals / legal persons


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Sources of international law

Point of departure: states must agree:

Primary Sources:

Treaties Customary law

General Principles

Secondary Sources: Jurisprudence

Literature

(Statute of the International Court of Justice art.38)


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Article 38 of the ICJ Statute:

1. The Court, whose function is to decide in accordancewith international law such disputes as are submitted to

it, shall apply:

a. international conventions, whether general orparticular, establishing rules expressly recognized by thecontesting states;

b. international custom, as evidence of a generalpractice accepted as law;

c. the general principles of law recognized by civilizednations;

d. subject to the provisions of Article 59, judicialdecisions and the teachings of the most highly qualifiedpublicists of the various nations, as subsidiary means forthe determination of rules of law.


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Vienna Convention on the Law of Treaties:

Article 31 General rule of interpretation:

1. A treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to theterms of the treaty in their context and in the light of itsobject and purpose.

Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of

interpretation, including the preparatory work of thetreaty and the circumstances of its conclusion, in order toconfirm the meaning resulting from the application of

article 31, or to determine the meaning when theinterpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or

unreasonable.


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The Content of IHL is PROTECTION of

1) Combatants:- Soldiers/officers

- Others (participants in hostilities)

2) Non-combatants:- Soldiers hors de combat (Sick, wounded, surrendered,

POWs)- Civilians


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Jus ad bellum and jus in bello

Jus ad bellum are the international rules

pertaining to to which extent the use of

military force against another state is

allowed.

Jus in bello are the international rules

pertaining to how armed conflict must be

conducted.


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Jus ad bellum

The Prohibition:

The UN Charter Article 2 (4): The use or

threat of use of force against states is

prohibited

The only exceptions:

The UN Charter Articles 39 41 and theright of self defence (Article 51)


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Article 2 (4) isjus cogens

Jus cogens: peremptory norm of general

international law:

..a norm accepted and recognized by the

international community of States as a

whole as a norm from which no derogation

is permitted The Vienna Convention on the Lawof Treaties (VCLT) Article 53


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The Prohibition against the use of force

Article 2 (4) All Members shall refrain in their

international relations from the threat or

use of force against the territorial integrityor political independence of any state, or

in any other manner inconsistent with the

Purposes of the United Nations.


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CHAPTER VII

ACTION WITH RESPECT TO THREATS TO THE PEACE,

BREACHES OF THE PEACE, AND ACTS OF

AGGRESSION

Article 39

The Security Council shall determine theexistence of any threat to the peace,

breach of the peace, or act of aggressionand shall make recommendations, ordecide what measures shall be taken inaccordance with Articles 41 and 42, tomaintain or restore international peaceand security.


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Article 41

The Security Council may decide what

measures not involving the use of armed force

are to be employed to give effect to its decisions,

and it may call upon the Members of the United

Nations to apply such measures. These mayinclude complete or partial interruption of

economic relations and of rail, sea, air, postal,

telegraphic, radio, and other means of

communication, and the severance of diplomaticrelations.


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Article 42

Should the Security Council consider that

measures provided for in Article 41 would beinadequate or have proved to be inadequate, it

may take such action by air, sea, or land forces

as may be necessary to maintain or restore

international peace and security. Such actionmay include demonstrations, blockade, and

other operations by air, sea, or land forces of

Members of the United Nations.


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Article 51

Nothing in the present Charter shall impair theinherent right of individual or collective self-defence if an armed attack occurs against aMember of the United Nations, until the SecurityCouncil has taken measures necessary tomaintain international peace and security.Measures taken by Members in the exercise of this rightof self-defence shall be immediately reported to theSecurity Council and shall not in any way affect the

authority and responsibility of the Security Council underthe present Charter to take at any time such action as itdeems necessary in order to maintain or restoreinternational peace


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The lex superior nature of the UN

CharterArticle 103

In the event of a conflict between the obligationsof the Members of the United Nations under thepresent Charter and their obligations under anyother international agreement, their obligationsunder the present Charter shall prevail.

Article 2 (6)

The Organization shall ensure that states which are notMembers of the United Nations act in accordance withthese Principles so far as may be necessary for the

maintenance of international peace and security.


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Brief History of IHL

Many examples of humanitarian rules of warfarethroughout history and many examples of the opposite

The concept of just war (Roman law, Thomas Aquinas,etc..)

Chivalry (the middle ages)

Mercenaries

Hugo Grotius (1625)

The age of enlightenment (Rousseau)

The battle of Solferino (1859)

The first Geneva Convention 1864 The Lieber Code

Hague Lawand Geneva Law


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Main principles of IHL

HUMANITY

Distinction

Military necessity

Proportionality


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Main Sources of IHL Hague Law (pertaining chiefly to means of war)

The Petersburg Declaration 1868

Hague Regulations of 1899 and 1907

Gas protocol of 1925

NPT (non-proliferation of nuclear weapons) 1968 Biological weapons 1972

ENMOD convention 1977

Convention on inhuman weapons (CCW) 1980

Chemical weapons 1993

Anti Personnel Mines 1997


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Geneva Law (pertaining chiefly to protection)

The four Geneva Conventions (1949): 1: Wounded and sick soldiers on land

2: Wounded and sick soldiers on sea

3: Prisoners of war

4: Protection of civilians and occupation

The two Additional Protocols (1977):

Additional rules on means and protection

1) In international armed conflicts

2) In non-international armed conflicts


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International Customary Law

Article 38 (1) b ICJ Statutes: ..international custom, asevidence of a general practice accepted as law;

The ICRC Study on International Humanitarian Law wasCommissioned by State Parties to the GenevaConventions in 1995

Three volumes in 2005: 1) The rules (161 rules)

2 and 3) State practice

lecture 1 ihl07 1 slides

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