INTERNATIONAL HUMANITARIAN LAW NOTES

UNIT 1: Introduction to International Humanitarian Law

a) Definition of International Humanitarian Law

b) Jus In Bello and Jus Ad Bellum
c) Synergy and dissonance between International Humanitarian Law and International
Human Rights Law
d) Fundamental Principles of International Humanitarian Law.
e) Sources of International Humanitarian Law
f) History:
o Ancient Indian and Oriental Philosophies on the Law of War
o Eastern and Western Philosophies on the Law of War
o History of International Legal Instruments on the Laws of War

WHAT IS IHL?

It is a set of rules which govern the means and methods of warfare in order to reduce the
intensity of hostilities.

International humanitarian law is a part of international law, which is the set of rules that
governs state-to-state relations. International law is embodied in treaties or conventions
between states, in customary laws, which consist of State practices deemed legally
binding by them, and in general principles.

JUS IN BELLO AND JUS AD BELLUM

Public International law- Jus Ad Bellum: Law to war. Deals with the legality.

IHL- Jus In Bello: Law in war.

The body of international law relating to the conduct of armed conflicts is sometimes
referred to using the Latin term jus in bello (‘law in war’). This is generally viewed as
synonymous with what we now call international humanitarian law. The law relating to
the commencement of armed conflicts, by contrast, is known as the jus ad bellum (‘law to
war’). It is also sometimes called the jus contra bellum (‘law against war’), since its
primary concern is to stem the proliferation of armed disputes.

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The distinction between the jus in bello and the jus ad bellum is fundamental to
international humanitarian law. The objective of this field of law is to set up a body of
rules that applies consistently to all parties to an armed conflict. It thereby avoids the need
to draw difficult and controversial distinctions between just and unjust conflicts. It also
avoids passing judgment on which of the parties to a conflict may be at fault. It simply
applies the same fundamental guarantees and responsibilities to everyone.

Who is bound by these bodies of law?

IHL binds all actors to an armed conflict: in international conflicts it must be observed by
the states involved, whereas in internal conflict it binds the government, as well the
groups fighting against it or among themselves. Thus, IHL lays down rules that are
applicable to both state and non-state actors.

Who stands protected under IHL?

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IHL main treaty sources applicable in international armed conflict are the four Geneva
Conventions of 1949 and their Additional Protocol I of 1977. The main treaty sources
applicable in non-international armed conflict are article 3common to the Geneva
Conventions and Additional Protocol II of 1977. There are 4 Geneva Conventions and 3
Additional Protocols which provide for protection of:

- Civilians in armed conflict

- Medical personnel
- POW
- Hors de Combat (wounded combatants)
- Journalists
- Dead persons
- Environment
- Cultural heritage
- Hospitals
- Schools
- Religious sites

IHL aims to protect persons who do not, or are no longer taking part in hostilities.
Applicable in international armed conflicts, the Geneva Conventions deal with the
treatment of the wounded and sick in the armed forces in the field (Convention I),
wounded, sick and shipwrecked members of the armed forces at sea (Convention II),
prisoners of war (Convention III) and civilian persons (Convention IV). Civilian persons
include internally displaced persons, women, children, refugees, stateless persons,
journalists and other categories of individuals (Convention IV and Protocol I).

SYNERGY AND DISSONANCE BETWEEN INTERNATIONAL

HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS
LAW

Differences:

1. Scope of Application: IHL applies only during armed conflict or situations of

violence, whereas HRL applies at all times, including during times of peace. IHL is
designed to provide protection for victims of armed conflict, while HRL seeks to
safeguard the rights of individuals in all circumstances.

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2. Nature of Obligations: IHL imposes obligations on states and non-state actors
engaged in armed conflict to comply with the laws of war, while HRL places
obligations on states to respect, protect, and fulfil human rights. IHL imposes certain
restrictions on the conduct of hostilities, while HRL primarily seeks to promote and
protect the enjoyment of human rights.

3. Context of Enforcement: IHL is enforced primarily through international criminal

tribunals, such as the International Criminal Court, whereas HRL is enforced through
domestic and international mechanisms, such as national courts, human rights
commissions, and international treaty bodies.

4. Focus of Protections: IHL focuses primarily on protecting victims of armed conflict,

such as civilians, prisoners of war, and other non-combatants, while HRL seeks to
protect a broad range of human rights, including civil and political rights, economic,
social, and cultural rights, and the rights of marginalized groups.

5. Flexibility of Norms: IHL has a degree of flexibility in its application, allowing for
certain derogations in times of military necessity, whereas HRL is generally
considered to be non-derogable and subject to stricter scrutiny. In addition, IHL is
more heavily influenced by customary law, while HRL is based largely on treaty law.

Similarities:

1. Protection of Human Dignity: Both IHL and HRL are based on the principle of
protecting human dignity. IHL seeks to safeguard the rights of individuals affected by
armed conflict, while HRL aims to protect the rights of individuals in all
circumstances, including during times of peace.

2. Universal Application: Both IHL and HRL apply to everyone, regardless of their
nationality, ethnicity, religion, or other status. They are both considered to be
universal bodies of law that protect human beings from harm.

3. Compliance with International Law: Both IHL and HRL are grounded in international
law, and states are expected to comply with them in good faith. They are also subject
to monitoring and enforcement by international bodies, such as the International Court
of Justice, the International Criminal Court, and the UN Human Rights Council.

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4. Protection of Fundamental Rights: Both IHL and HRL aim to protect fundamental
human rights, such as the right to life, the prohibition of torture, and the protection of
civilians. They both seek to prevent and respond to violations of these rights.

5. Overlapping Norms: Some of the norms in IHL and HRL overlap, such as the
prohibition on torture and the right to a fair trial. This means that in some cases, a
violation of IHL may also constitute a violation of HRL, and vice versa.

SOURCES

All sources have significance since the conventions could be silent on some situations.

Formal:

- Hague Regulations
The Hague Conventions of 1899 & 1907 and in particular the Regulations attached to
Hague Convention IV 1907 on Laws and Customs of War on Land. Concerned with
mitigating the suffering caused to combatants in warfare by limiting the variety of
weapons and tactics that forces employ against one another.
- St Petersburg Declaration
In 1868 when the Russian govt invited a commission of international military experts
to St Petersburg to discuss growing concerns about the use in warfare of a recently
developed range of light explosives which where designed to put only one combatant
out of action but typically inflicted far more serious wounds than an ordinary rifle
billet and therefore greatly increased the suffering experienced by the victim.
Responded by adopting a declaration forbidding the use in hostilities of explosives
under 400 grams in weight. Emphasised the importance of alleviating the suffering of
combatants and noted that the inflictions of injury during armed conflicts was
permissible only to the extent that it was necessary to overcome the enemy resistance.
- Lieber Code: Sherman Tactics: the 1865 code is a military order that codifies the
laws of war into 157 articles and instructs soldiers on their humanitarian obligations
and prohibited and permitted conduct during armed conflict. Main reason for its
importance is that it represents the first attempt to gather the customs and usages of
the laws of war into one document. Conceived by Francis Lieber due to a lack of
regulation of the conduct of hostilities during the American Civil War.

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- Geneva Conventions and Additional Protocols
- Other specific treaties on weapons
- Municipal law
- ICTR/ICTY
International criminal tribunals, particularly the ICTY, have taken a conservative
approach to the identification and application of customary international law
principles.
Both the centrality of customary law in ICTY doctrine and the ICTY’s rigorous
approach to analysing and applying it are the result of the Tribunal’s obligation, as a
criminal court, to respect the fundamental principle of nullum crimen sine lege, or the
legality principle: a defendant may only be convicted on the basis of legal rules
clearly established at the time of the offence. An example illustrating the Tribunal’s

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 approach is the 2003 decision in an interlocutory appeal in the Hadzihasanovic case
2003., which presented two issues. The first was whether customary law applied the
doctrine of command responsibility to internal conflicts. The five-member panel
unanimously agreed that it did. The Appeals Chamber’s methodology in reaching this
conclusion provides an illustration of its generally meticulous approach. The Appeals
Chamber specifically noted that ‘to hold that a principle was part of customary
international law, it has to be satisfied that State practice recognized the principle on
the basis of supporting opinio juris’. At issue was whether a superior could be held
responsible for punishing acts that were committed before he became the superior of
the persons who committed the offences—that is, crimes that took place on his
predecessor’s watch. By a majority, the Appeals Chamber rejected such culpability,
finding no state practice and no opinio juris to support the theory of liability. It also
found that an expansive reading of criminal law texts, including the ICTY Statute,
adequate to support such liability would violate the principle of legality.
- IMT: Nuremberg & Tokyo
The roots of the revival of customary humanitarian law can be traced back to the
Nuremberg trials. Customary law was essential to the Nuremberg tribunals’ ability to
convict Nazi war criminals. The tribunals, including the International Military
Tribunal, could not rely heavily on treaties because the Soviet Union had not ratified
the 1929 Geneva Convention on Prisoners of War and because the application of The
Hague Convention No IV was challenged on the ground that the situation of the
belligerents did not conform with its si omnes clause, as not all the belligerents were
parties. The IMT reasoned, however, that the law of war was to be found not only in
treaties but also in the customs and practices of states and in the general principles of
justice.

Informal:

I) Religion
a) Buddhism
1. Jus War Theory/Legitimacy of war: according to Buddhism, nothing can be
called a just war- it is only a false term coined by parties to justify violence
and massacre.
Nonetheless according to Buddhism, war can be carried out for self defence
after all peaceful negotiations have broken down.

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 2. Means and methods of Warfare: Equality of arms, Protection of Civilians,
Treatment of POW, Permitted Weaponry, Permitted Hours of War. Example
hyper-destructive weapons are not to be used.
3. Protection of Cultural Property and Environment under Art 35(3) AP (1)
Principle of trusteeship refers to protection of environment however it is
poorly defined under IHL.
b) Christianity (western nations)
1. Christian Pacifism: Fifth Commandment prohibits killing. Condemned
aggressive war as a sin, an offence and outrage against the majesty of God. No
state must pursue to take even the cause of justice into its own hands, warfare
undertaken on the sovereign decision of the national state is an immoral means
for settling the grievances and altering the existing conditions.
2. Legitimacy of warfare, it must be for a just cause and out of necessity. No one
had the right to kill thy neighbour, however, the use of force strictly according
to the rule of proportionality is permissible to ward of any present and
imminent threat to the safety of oneself, one’s family and friends and one’s
property. It thus preludes condemnation of such use of force if it is resorted to
or by state or religion to protect itself in the interest of ensuring peace. Waged
only as a necessity for peace and have a just cause which is if it avenges
injuries. No wanton violence, profaning of temples, looting, massacre or
burning, vengeance or atrocities and reprisals. Just causes included defence of
the fatherland against enemy attack, recovery of goods seized by enemy and
denial by the enemy of the right of free passage.
3. Prohibition on attacking cultural property
4. Prohibition on use of weapons which are hyper destructive. Under St
Petersberg declaration on prohibition on use of cross bow and siege engines,
pg 31 of book.
5. Prohibition on reprisals and collective punishment
6. Respect for principles of IHL- proportionality and necessity.
c) Islamic Countries (middle east)
1. Legitimacy of warfare: war is to be resorted to out of self defence or defence
of religion not for personal glory, power or extension. Only in extraordinary
circumstances when all means and methods of negotiation fail. Realistic
approach of Islam recognises war as lawful, justifiable course for restoration
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 of justice, freedom and peace. Para 2 Article 35 of Protocol I prohibits to
employ weapons, projectiles and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering.
2. Perfidy & Ruses: Perfidy is prohibited acts which invite the confidence of the
adversary and then deceiving them. Art 37 of Protocol I. Armed forces dressed
as ICRC doctors with the aim of rescuing hostages was a misuse of the ICRC
emblem. Ruses are permissible strategies of IHL which include acts such as
misinformation, setting up traps, camouflage uniforms.
3. Prohibition of torture
4. Respect for POW- Not to torture their enemies or subject them to treatment
contrary to human dignity. Forbids mutilation, torture and any other degrading
treatment of enemies in an armed conflict. Equality, Humane treatment, Fair
trial if needed. Cannot be killed.
5. Enemy persons and property: civilians population is not the object of attack.
Civilian property should not be damaged. No killing of old persons, women,
children, people in worship places.
d) Hinduism various schools of thought (south Asian)
1. Legitimacy of Warfare/Jus War Theory: in ancient india, war was defined in
the sense of an offensive operation and a deliberate armed conflict. Although
other types of wars such as matra yudha and kuta yudha were also resorted to
by states, only wars involving the use of weapons and armed forces were seen
as the final arbiter in the solution of international disputes in ancient india.
War was then regarded as an external aspect of sovereignty. In a society in
which the reduction of the enemy territory and the protection of one’s own
were considered a paramount and sacred duty of the king, the recognition of
the legitimacy of war should not come as a surprise at all, especially when was
was seen as a natural feature of human society in all the major civilizations/
the right to make war in the old traditional sense is today ruled out even
though the right of a state to make war was the ultimate means of self help was
recognised in international law till the year 1920.
2. Seen as a profession and means of livelihood: In a society in which the state
itself was identified with a class whose not only legitimate but laudable
profession was fighting, it was natural to look upon war as a profession and a

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 means of livelihood. To justify and glorify war, certain writers appealed to the
principle of honour, bravery, intrinsic worth and glory.
3. As a means of Last Resort: the fact of the matter is that the ancient india states
believed in the principle of settlement of disputes by pacific meas and resorted
to war as an ultimate means of self help when all other means proved futile.
Manu instructed king to try to conquer his foes by conciliation with gifts and
creating dissension used either separately or conjointly, never by fighting if it
could be avoided. Recognising the uncertainty of war, Kautilya also advised
the king not to resort to war against the equal and the stronger for going to war
with stronger he engages as it were in a fight on foot with an elephant and
going at war with equal he brings about loss on both sides like an unbaked jar
struck by unbaked jar.
4. Classification of War as per Kautilya
a) Open War: informing the enemy for the violence to take place, refers to
type of warfare where time and place of conflict is designated.
b) Concealed War: creating fright, sudden assault, striking when there is a
calamity. Taking advantage of the vulnerable time period or attacking in a
sudden manner.
c) Silent Warfare: secret practices and instigations through secret agents,
spies or mercenaries.
5. Distinction between combatants and non-combatants: not to strike people
sleeping, disarmed, in fight with another, who is retreating or surrendering,
onlooker, women, infants.
6. Rules of Warfare
a) Equality of weapons
b) Protection of civilians: now a recognised cardinal principle under IHL
Article 48 of 1977 Protocol I to ensure respect for and protection of
civilian population and civilian objects, parties to conflict to distinguish
between civilians and combatants and direct operations only against
military objectives. Article 52 Protocol I civilians not to be subjected to
attack or reprisal.
c) Prohibition of perfidy: prohibited acts which invite the confidence of the
adversary and then deceiving them. Armed forces dressed as ICRC doctors
with the aim of rescuing hostages was a misuse of the ICRC emblem.
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 d) Ruses are permissible strategies of IHL which include acts such as
misinformation, setting up traps, camouflage uniforms.
e) Principle of distinction
f) Prohibition of reprisal
g) Protection of victims of war in terms of humanitarian and medicinal
assistance.
II) Customs
This is a body of rules dealing with armed conflict which is derived from state
practice is otherwise known as the customs of war has its origin in the customary
practices of the armies as they developed over the ages and on all continents. As
the treaties did not codify all aspects of custom, the importance of customary
international law is reaffirmed in the “Martens Clause” and later in the Additional
Protocol I to the Geneva Conventions.
a) Marten’s clause
This was introduced in the preamble of Hague Convention of 1899 to resolve the
differences of opinion between powerful states and weak state. In cases not
covered by this convention or other international agreements, civilians and
combatants remain under the protection and authority of the principles of
international law derived from established customs, from the principles of
humanity and from the dictates of public conscience.
3 Interpretations of Martens Clause:
o Narrow interpretation shall bind signatories of a treaty and martens’ clause
shall serve the purpose of an international customary law.
o Broad interpretation shall advocate for the clause to be a separate source of
law on its own which is capable of being utilized independently as a basis of
an argument.
o Moderate interpretation shall treat the clause as a means to understand and
interpret treaty provisions.
An innovative approach was taken by the Conseil de guerre de Bruxelles in the
K.W. case (judgment of 8 February 1950). The Military Court, without being
directly cognizant of Klinge, in fact took up one of the arguments made there by
the Norwegian Supreme Court. However, it framed the legal issue at stake in a
much more appropriate and correct manner.
The defendant, a police officer, had been accused of violations of the laws and
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 customs of war, in that he had caused serious injury to a number of civilians
detained after fighting against the German occupiers in occupied Belgium. The
Court pointed out that Article 46 of the Regulations annexed to the IVth Hague
Convention on the Laws and Customs of War on Land imposed upon the
occupying power the duty to respect ‘the lives of persons’. However, no provision
of the Regulations expressly prohibited acts of violence and ill treatment
(violences et sévices) against the inhabitants of occupied territories. The Court
thus referred to the Martens Clause. It noted in this regard that in its search for the
principles of international law resulting from the principles of humanity and the
dictates of the public conscience, it was to be guided by the Universal Declaration
of Human Rights, Article 5 of which provides that ‘no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment’. The Court
then found that the acts performed by the accused against his victims amounted to
torture and cruel treatment and concluded that they constituted violations of the
customs of war.
This judgment is exceedingly interesting in at least two respects; first, because it
demonstrates that the clause may be of invaluable importance at the interpretative
level and secondly, because it points to the proper modalities of construction of
customary principles or rules of humanitarian law. By virtue of the clause,
reference
should thus not be made to vague principles of humanity, but rather to those
human
rights standards that have been laid down in international instruments such as the
Universal Declaration. They may, among other things, be used as guidelines for
determining the proper interpretation to be placed upon vague or insufficiently
comprehensive international principles or rules.
b) Principles of PIL/IHRL

III) Case Laws which have gained customary significance

In Nicaragua Case Common Article 3 was read as customary law. For example, in the
Nicaragua case, the Court held that Common Articles 1 and 3 of the Geneva
Conventions constitute binding general principles of humanitarian law—in other
words, customary law. In doing so, the Court made a major contribution to the vitality

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 of humanitarian law. What is remarkable about the Nicaragua case, though, is the
complete failure to inquire whether opinio juris and practice support the
crystallization of Common Articles 1 and into customary law.
In Bosnia v Serbia 2007, the principle of legality stated a defendant may be convicted
on the basis of legal rules clearly established ay the time of the offence. Nullum
Crimen Sine Lege. The legality principle may act as a restraint on tribunals in terms
of their ability to be progressive in developing customary humanitarian law.
Hadzihasanovic case 2003.

FUNDAMENTAL PRINCIPLES OF INTERNATIONAL

HUMANITARIAN LAW

1. Distinction
the principle of distinction requires military commanders to distinguish at all times
between military targets and civilian objects. Only legitimate military targets may be
attacked. Artic
le 48 of Additional Protocol I makes it clear that this principle takes the form of an
absolute prohibition, stating that parties ‘shall at all times distinguish between civilian
objects and military objectives and shall direct their operations only against military
objectives. The principle of distinction stipulates that military attacks may never be
directed at civilian persons or objects, regardless of whether this might lead to a
military advantage. It therefore places a further limitation on the scope of permitted
attacks under the doctrine of military necessity. The principle of distinction
supplements it with a further restriction: attacks may never be directed at civilian
objects, even if such a strategy would produce a military benefit. According to IHL
civilians could be attacked under certain circumstances or if the military advantage is
great enough. Derogations from the principle of distinction would then be permitted
where justified by military necessity. The principle of distinction also plays an
important role in protecting humanitarian workers, such as medical personnel and Red
Cross officials, from becoming the object of military attacks. Humanitarian workers
are
crucial to the efforts of the Red Cross to alleviate the harms of armed conflict. The
principle of distinction makes it absolutely clear that there is never any excuse for
targeting such persons.

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2. Proportionality
An attack on a legitimate military objective may sometimes cause incidental damage
to civilian persons or objects. These harmful side effects are regulated in international
humanitarian law by the doctrine of proportionality. This doctrine prohibits attacks
that may be expected to cause injury to civilian life or property that is excessive in
relation to the anticipated military advantage. A clear statement of the doctrine of
proportionality can be found in Article 51(5)(b) of Additional Protocol I, which
prohibits attacks ‘which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which would
be excessive in relation to the concrete and direct military advantage anticipated’. The
doctrine holds customary law status in both international and non-international armed
conflicts. It places a duty on forces to assess the impact of an attack on civilian
objects and refrain if the principle would be violated. The doctrine of proportionality
is evidently closely linked to the notion of military necessity. Proportionality entails
that an attack that causes incidental damage to civilian objects can be justified only
where the damage is proportionate to a concrete and direct military advantage; in
other words, where military necessity demands it. Proportionality can never be used to
justify a direct attack on civilian persons or objects, even if a case could be made that
a proportionate military advantage would thereby be gained. It only applies to attacks
directed at military objectives that may impact incidentally on civilians. The legal
framework therefore mandates the following procedure for military commanders:
first, abide by the principle of distinction by ensuring attacks are directed only at
legitimate military targets; second, assess proportionality, making sure that a planned
attack on a military objective will not cause unreasonable damage to civilian objects.
3. Military Necessity
The prohibition on causing unnecessary suffering is closely linked to the doctrine of
military necessity. According to this principle, a party making an attack is permitted
to use only that degree of force required to achieve the anticipated military objective
that will result in minimum loss of life and property. Military necessity is sometimes
depicted as a permissive doctrine; that is, as permitting a party to do whatever is
necessary to achieve the desired military outcome. However, it is better viewed as a
restrictive doctrine. A party may do what is necessary to achieve the objective and no
more.

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 Example: Israel targeted killings case. The proper evidence of legitimate target. Level
of threat posed by the legitimate target. Which option will cause lesser casualties.
There must be a balance between proportionality and military necessity.
4. Superfluous Injury
Prohibition on the infliction of superfluous injury or unnecessary suffering. The basic
idea here is that attacking forces are proscribed from inflicting injury on opposing
combatants beyond what is necessary to remove them from active combat. According
to Article 22 of the Hague Regulations, ‘The right of belligerents to adopt means of
injuring the enemy is not unlimited’. This principle appears in very similar terms in
Article 35(1) of Additional Protocol I. Article 35(2) then states that ‘It is prohibited to
employ weapons, projectiles and material and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering’. The prohibition on inflicting superfluous
injury was first codified in the St Petersburg Declaration of 1868. The main aim of
that declaration was to prohibit explosive bullets, but its Preamble contains a wide-
ranging statement concerning the limits that customary rules place on the conduct of
warfare. There are numerous historical examples of weapons that have been banned
or criticised for causing unnecessary suffering. The St Petersburg Declaration, was
aimed at explosive bullets, designed to leave a small entry wound but explode inside
the body. In a similar vein, the 1899 Hague Peace Conference agreed to ban dum-dum
bullets, which were designed to flatten and expand inside the target. In more recent
times, criticism has been directed at landmines, cluster munitions, chemical weapons
and nuclear weapons on similar grounds.
5. Indiscriminate Attacks
The principle of distinction and the doctrine of proportionality are further
supplemented by a general prohibition on indiscriminate attacks. Article 51(4) of
Additional Protocol I states that ‘indiscriminate attacks are prohibited.’ The provision
then goes on to clarify that attacks are considered indiscriminate if they:
o are not directed at a specified military objective;
o employ a method that cannot be directed at a specific military objective; or
o apply a method or means of combat the effects of which cannot be limited to a
specific military objective.
The three limbs of this definition each cover a specific type of case. The first limb
deals with attacks that are indiscriminate in the sense that they are not directed at a
specific, identifiable military target. This limb therefore reinforces the principle of
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 distinction, providing that every attack must have a legitimate military objective as its
end. The second limb deals with attacks that use a type of weapon or a method of
targeting that is incapable of being spatially limited to a specific military objective.
This means that attacks that are ostensibly directed at a particular military objective
will still be indiscriminate if the means or method of attack employed is incapable of
being confined to that target. The third limb covers attacks whose effects cannot be
confined to a specific military objective. This overlaps with the second limb discussed
above, but it also covers attacks that may be capable of being confined to a military
target at the time they are launched, but will have subsequent effects extending
beyond that objective. In other words, the second limb can be understood as covering
attacks that are spatially indiscriminate, while the third limb covers those that are
temporally indiscriminate.
6. Neutrality
Geneva Convention. Can give humanitarian aid but cannot help. Prohibits state parties
from escalating a conflict but it does not apply to pvt org.

UNIT 2: Scope and Application of International Humanitarian Law

a) What is an armed conflict?

b) International Armed Conflict and Non-International Armed Conflict.
c) Common Article 3 Geneva Convention.

International Armed Conflict

According to Common art 2 Geneva Convention will apply to all cases of declared war or of
any other armed conflict which may arise between 2 or more of the high contracting parties
even if the state of war is not recognised by one of them.

The classification of conflicts is a reality in IHL application and is important because the
application of IHL provisions varies in different conflict situations. For example, during an
international armed conflict, Geneva Conventions I-IV and Additional Protocol I apply to all
parties to the conflict. Customary rules applicable in international armed conflicts are also
applicable. However, during a non-international, or internal, armed conflict, only the
fundamental guarantees of Article 3 common to the Four Geneva Conventions of 1949 and
customary IHL are applicable. The provisions of Additional Protocol II also apply in such
situations if the party concerned is a party to the Convention.

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Types of Armed Conflict

1) Violence between 2 states: 4 Ingredients: physical hostilities, armed forces, retaliation

not mandatory, declaration of war not mandatory.
2) Prosecutor v Tadic (ICTY)

The appeals chamber in this case confirmed that for there to be a violation of the IHL
there must be an armed conflict which means whenever there is a resort to armed
force between states along with minimum threshold of hostilities.. This was
reaffirmed in the case of Prosecutor v Kunarac.

3) AP I, Art 1(4) Armed conflict where people are fighting against colonial domination,
racist regimes, alien occupation are considered IAG.

Non-International Armed Conflict

Common Article 3 has the broader scope of the two. It applies to armed conflicts ‘not of an
international character’ occurring in the territory of a state party. A dispute or violence
between state/armed forces or between non state actor/rebel/OAG.

AP 2: Dispute taking place between state armed forces and NSA. An armed conflict which is
non international in nature may become an international conflict. (USA v Nicaragua 1986)

The conflict between contras forces and those of the gov of Nicaragua is an armed conflict
which is not of an international character. However, with the US supporting the rebel group
changed the nature of the conflict and internationalised it.

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When is a party to a NIAC deemed to be acting on behalf of a third party state, thereby
internationalising the conflict?

Case: Nicaragua v USA ICJ judgement 1986.

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The first test comes from ICJ namely the effective control test. The litmus test is whether a
party is acting on behalf of a state if the state has effective control over the group. This is a
high standard test, requiring the state to issue the group with instructions to commit specific
acts. It is not enough that the state provides technical support or financial assistance. This is a
high standard test, requiring the state to issue the group with instructions to commit specific
acts. It is not enough that the state provides technical support or assistance.

Differing from this test the appeals chamber in Tadic case (ICTY) has given and assessed the
control of a state over an organised group by using the weaker overall control test. The
overall control test asks whether the state wields general control over the group, not only by
equipping land financial gain but also by coordinating or helping in the military activity. As
compared to the effective control test this test does not require that the state issued directions
to perform specific acts, but merely that the state has an overall relationship with the group

Whether mere funding and financing should be covered under the controlled test?

The current jurisprudence on the control test suggests that only funding in the form of
providing military aid does not qualify as the state participating in the conflict.

Whether pvt organisations for example Starlink and the Wagner Group have any
accountability under the Geneva Conventions?

Common Article 2 refers to high contracting parties, which does not at the moment extend to
pvt organisations.

What is an armed conflict? Sub topic: Common Article 3 Geneva Convention

(summary)

For the first time NIAC was covered under this article

Previously customs, religion and case laws from IMT (Int Military Tribunal Holocaust) and
the ICTY were the guiding factors for rights of civilians during NIAC.

Common Article 3 functions like a mini convention.

It embodies the principles of humane treatment, proportionality, necessity, distinction,

prohibition of weapons that cause indiscriminate attacks. (weapons of mass destruction,
mother of all bombs, chemical weapons like white phosphorous and agent orange)

The article establishes fundamental rules from which no derogation is permitted.

19
The contents of common article 3 also include the following points:

IV) This article prohibits murder, mutilation, torture, taking of hostages, unfair trial
and cruel, humiliating and degrading treatment.
V) The wounded (Hors de Combat) and civilians are to be cared for.
VI) Organisations such as ICRC and other high contracting parties should be granted
access and support for providing humanitarian and medical assistance.

Case Laws:

VII) Nicaragua v USA

VIII) Prosecutor v Tadic & Prosecutor v Kunarac ICTY
IX) Prosecutor v Haradinaj ICTY
X) Juan Carlos Abella v Argentina (IACHR): The question before the court was
whether a violence takes place only for a period of 30 hours qualifies as an armed
conflict? There was political unrest which led to physical violence and hostilities
between the armed forces and an organised armed group. The court concluded that
it was an armed conflict and the duration of hostilities is immaterial. It is rather
the planning, coordination and attack by the OAG on the military base which is
relevant to determine whether the unrest is a conflict. The fact that along with the
physical violence there was an engagement between the armed forces of the
government and the organised armed group is the quintessential factor.

UNIT 3: Treatment of victims and prisoners of war

a) Introduction
b) The general obligation of humane treatment
c) Participants in the Conflict.

Who is a Combatant?

The classic definition of combatant status under international humanitarian law is found in
Article 4 of Geneva Convention III. That provision sets out the categories of people who are
entitled to prisoner of war status. The first category comprises members of the regular armed
forces of a party to the conflict. The second category covers members of other armed groups,
such as militias and volunteer corps, who:

o are under responsible command;

20
 o bear a fixed, distinctive sign recognisable at a distance;
o carry arms openly; and
o respect the requirements of international humanitarian law.

A broadly similar definition, albeit with some differences, is found in Articles 43 and 44 of
Additional Protocol I. That definition covers all armed forces or groups under the command
of a party to the conflict who are subject to an internal disciplinary system and distinguish
themselves from the civilian population or, where this is not possible, carry arms openly
whenever engaging in or preparing to engage in an attack. The main difference between the
definitions is that whereas Geneva Convention III seems to require combatants to
systematically distinguish themselves from civilians, Additional Protocol I recognises that in
some cases they may only do so when launching an attack.

The types of situations envisaged in Additional Protocol I where it is not possible for
combatants to distinguish themselves from civilians include resistance movements in
occupied territories, wars of national liberation and civilians spontaneously taking up arms as
the last line of defence (levée en masse). Combatants falling into these categories are likely to
find it highly impractical or perilous to consistently carry arms openly and bear a uniform or
fixed, distinctive sign.

Who is a Prisoner of War?

Article 4 of Geneva Convention III provides an extensive definition of prisoner of war status.
A prisoner of war is defined as a person belonging to any of a number of enumerated
categories, who has ‘fallen into the power of the enemy’. The first category listed in the
provision covers members of the regular armed forces of a party to the conflict. The second
category includes members of other armed groups who:

o are under responsible command;

o bear a fixed, distinctive sign recognisable at a distance;
o carry arms openly; and
o respect the requirements of international humanitarian law.

These first two categories, then, correspond to the categories of legally recognised
combatants. Anyone who is recognised under Geneva Convention III as a combatant is
therefore entitled to prisoner of war status if captured by the enemy. Article 4 then goes on to

21
list several additional categories of prisoners of war who may not be covered by the
definition of a combatant. These include:

o persons who typically accompany armed forces, but are not members of the forces
themselves, such as civilian members of aircraft crews, war correspondents, supply
contractors and so on;
o members of crews of merchant marine and civil aircraft of a party to the conflict;
o inhabitants of a particular region who spontaneously take up arms;
o former members of armed forces who are caught in an attempt to rejoin the forces of
which they used to be members.

The definition of prisoner of war status in Geneva Convention III has now been
supplemented by Additional Protocol I. According to Article 44 of Additional Protocol I,
‘any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be
a prisoner of war’. We previously encountered the Article 43 definition of a combatant in
Chapter 3. The definition covers all armed forces or groups under the command of a party to
the conflict who are subject to an internal disciplinary system and distinguish themselves
from the civilian population or, in situations where this is not possible, carry arms openly
whenever engaging in or preparing to engage in an attack.

The main difference between the regimes is that whereas Geneva Convention III requires
combatants to distinguish themselves from civilians through a uniform or other distinctive
sign, Additional Protocol I recognises that this is sometimes too demanding. Members of
resistance groups and volunteer militia should be recognised as combatants and afforded
prisoner of war protections even if they do not wear uniforms, provided that they carry arms
openly during attacks.

HUMANE TREATMENT

Geneva Convention III sets out a number of basic principles governing the treatment of
prisoners of war. According to Article 13 of Geneva Convention III, ‘prisoners of war must at
all times be humanely treated’. Article 14 provides that ‘prisoners of war are entitled in all
circumstances to respect for their persons and their honour’. It follows from this fundamental
principle that prisoners of war should not be housed under punitive conditions, but should
always be treated humanely. They should, as far as possible, be detained in a way that
protects their health, security and general welfare. They are also entitled, as we will see, to
communicate with the outside world and maintain the basic components of meaningful

22
community life. Captured combatants no longer pose an active threat to the lives or
objectives of detaining forces. As such, they cease to be legitimate military targets and should
be treated with respect.

PARTICIPANTS

GC III includes the following as armed forces:

• Members of the armed forces of a Party, as well as members of militias or volunteer corps
forming part of such armed forces;

• Organized resistance movements under the conditions that they, (a) are commanded by a
person responsible for its subordinates, (b) have a fixed distinctive sign recognizable at a
distance, (c) carry arms openly, and (d) comply with IHL

• Persons who accompany the armed forces without actually being members thereof, such as
authorized civilian members of military aircraft crews, authorized war correspondents,
authorized supply contractors, authorized members of labour units or of services responsible
for the welfare of armed forces; and

• Levee en masse; Inhabitants of a non-occupied territory, who on the approach of the enemy
spontaneously take up arms to resist the invading forces without having had time to form
themselves into regular armed units, provided that they carry arms openly and comply with
IHL

UNIT 4: Treatment of victims and prisoners of war

Protection of wounded and sick in armed forces on the field

Part II of Geneva Convention IV provides special protections for the sick and wounded and
applies not only to protected persons but to the whole population of countries in conflict. The
application of this part does not, therefore, rely upon considerations of nationality or
relationship with a party to the conflict. Sick and wounded persons are defined as those who,
due to trauma, disease or other physical or mental disorder or disability, are in need of
medical assistance or care and who refrain from any act of hostility. Sick and wounded
persons are to be the object of particular protection and respect. Similar protections are
extended to infirm persons and expectant mothers. Sick and wounded persons must receive
the medical care and attention they need to the fullest extent practicable and with as little
delay as possible. They must not be the object of reprisals. Each party has an obligation to

23
search for the dead and wounded, assist shipwrecked persons and others in grave danger and
protect them against ill treatment. There is, however, no obligation to rescue the wounded
and shipwrecked if this would place the rescuers themselves in serious peril.

Sick, wounded, infirm or pregnant internees may only be transferred if the journey would not
be seriously detrimental to them, unless the transfer is required for their own safety. The
Geneva Conventions encourage the parties to a conflict to provide additional protection for
wounded and vulnerable persons beyond the obligations imposed upon them. Parties may
enter agreements for the mutual recognition of medical zones and hospitals in their territories
and neutralised zones in the area of hostilities to shelter sick and other vulnerable persons
from the effects of warfare.

The First Geneva Convention, 1949

The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces.

It protects:

• Wounded and sick soldiers • Medical personnel, facilities and equipment • Wounded and
sick civilian support personnel accompanying the armed forces • Military chaplains •
Civilians who spontaneously take up arms to repel an invasion

Specific Provisions

Art. 9: Authorized impartial relief by Red Cross and Red Crescent national societies.

Art 12: Wounded shall be respected and protected without discrimination.

Art. 15 The wounded and sick shall receive adequate care.

UNIT 5: Treatment of victims and prisoners of war

Protection of wounded, sick and shipwrecked members of armed forces at sea

The Second Geneva Convention, 1949

The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of August 12, 1949

It Protects:

24
•Armed forces members who are wounded, sick or shipwrecked •Hospital ships and medical
personnel • Civilians who accompany the armed forces.

Specific Provisions:

Arts. 12, 18 Search for, collect and care for the wounded, sick and shipwrecked.
“Shipwrecked” refers to anyone who is adrift for any reason, including those forced to land at
sea or to parachute from damaged aircraft.

Art. 21 Appeals can be made to neutral vessels, including merchant ships and yachts

Art. 22 Hospital ships cannot be used for any military purpose. They cannot be attacked or
captured.

Arts. 36-37 Religious, medical and hospital personnel serving on combat ships must be
respected and protected.

UNIT 6: Treatment of victims and prisoners of war

a) Protection of prisoners of war

b) Status of Spies, Mercenaries and unprivileged belligerents.

PROTECTION OF POW

The underlying rationale for the protections in Geneva Convention III is that keeping enemy
combatants’ prisoner is not a form of punishment or reprisal, but merely a temporary security
measure. It is a basic principle of international humanitarian law that combatants are not to be
punished for taking part in the conflict.

Capture of Prisoners of War

Prisoners of war enjoy significant protections from the moment they are captured. According
to Article 17 of Geneva Convention III, a captured combatant is required to divulge only her
or his full name, rank, date of birth and any serial number. Article 17 further provides that the
detaining party must issue prisoners of war with an identity card bearing this information.
Article 17 stipulates that prisoners of war who cannot identify themselves due to physical or
mental incapacity should be handed to the medical service. A prisoner who refuses to provide
identifying information may not be coerced or threatened.

According to Article 18, captured combatants are entitled to retain their personal effects,
including protective articles (such as gas masks), clothing and food, even if military issue.
25
However, arms, horses, military equipment and military documents may be confiscated. If
money is taken from a prisoner, it must be recorded on a register and a receipt issued. The
money must then be held in the prisoner’s name until she or he is repatriated.

Article 19 of Geneva Convention III provides that prisoners of war must be evacuated as
soon as possible to an area far enough from the combat zone to keep them out of danger.
Until this is done, they must not be needlessly exposed to military activities.

The communication rights of captured combatants are dealt with under Article 70.
Immediately after capture, prisoners of war must be allowed to write to their families and the
Central Prisoners of War Agency advising their capture, address and state of health. Delivery
of these communications must not be unreasonably delayed.

Prisoner of War Camps

Article 21 of Geneva Convention III states that prisoners of war may be confined in a camp.
However, the internees may not be held in close confinement except where necessary to
safeguard their health. May only be detained on land, in premises allowing hygiene and good
health. They must not be stationed near a combat zone and must not be used to shield military
objectives from attack. Living quarters for prisoners of war should be adequately heated and
lit, with bedding and blankets. Male and female prisoners of war should be housed in separate
quarters.

Article 26 of Geneva Convention III stipulates that food and water for prisoners of war shall
be of sufficient quantity, quality and variety to keep the internees in good health and avoid
excessive loss of weight. Prisoners undertaking strenuous labour should be provided with
extra rations where needed. It is prohibited to withdraw food from detainees as a means of
collective punishment.

Article 27, prisoners of war must be provided with clothing, underwear and footwear suitable
for the climate. Detainees undertaking work should be clothed appropriately.

Every prisoner of war camp must have an infirmary, with suitable facilities for contagious
and mental diseases and for the physically impaired. Prisoners of war should have medical
examinations at least once a month. Decisions to transfer prisoners between camps should
take into account their interests. Sick and wounded detainees should not be transferred if it
would endanger their health.

26
Medical and Religious Personnel

Medical personnel and chaplains associated with the armed forces are dealt with under
Article 33 of Geneva Convention III. Persons falling within these categories are not
considered prisoners of war, since they are not combatants. However, they may nonetheless
be detained to provide assistance to prisoners of war during their captivity. Medical personnel
and chaplains detained under this provision are then entitled to protections equivalent in all
respects to those given to prisoners of war. They are also entitled to be provided with the
necessary facilities for fulfilling their medical and spiritual duties.

Article 34 of Geneva Convention III stipulates that prisoners of war shall enjoy complete
latitude in their religious activities. There should be adequate facilities for religious
observance.

Disciplinary Procedures

Article 39 of Geneva Convention III provides that each prisoner of war camp shall be put
under the command of an officer of the detaining power. The commander is responsible for
ensuring compliance with the rules of Geneva Convention III. Prisoners of war should salute
the commanding officer, as well as other officers of the detaining power who are of a higher
rank than themselves. The text of Geneva Convention III should be made available to
prisoners in a language they can understand. Commands, notices and questioning of prisoners
should also be in a comprehensible language. Prisoners of war should be subject to the same
rules of conduct as the armed forces of the detaining power. Any rule imposed on prisoners
of war that does not also apply to detaining forces shall be enforced with disciplinary
measures only. A trial of a prisoner of war for a judicial offence (that is, an offence too
serious to be met simply with disciplinary action) shall be carried out by a military court,
except in certain exceptional circumstances. In all cases, the court must be impartial and
independent.

Articles 89 and 90 of Geneva Convention III set out the allowable disciplinary punishments
for prisoners of war. They include fines, suspension of privileges (other than the rights
guaranteed by the Geneva Conventions), fatigue duties not exceeding two hours daily and
solitary or other forms of confinement. Punishments may never be inhuman, brutal or
dangerous. No disciplinary punishment, including confinement, may last longer than 30 days.
Any offence that involves punishment exceeding this limit is deemed to be a judicial offence
and must be tried accordingly.

27
Article 42 makes it clear that the use of weapons against prisoners of war is an extreme
measure. It must be preceded by appropriate warnings, especially when prisoners are
attempting to escape.

Escape Attempts

The rules of Geneva Convention III relating to escape attempts strike a balance between the
duty prisoners may feel to escape and the legitimate interest of detaining powers in keeping
prisoners confined and maintaining orderly conditions in detention.

According to Article 91 of Geneva Convention III, a prisoner of war who successfully

escapes and is later recaptured shall not be punished. An escape is deemed successful when
the prisoner rejoins the armed forces of her or his own state or its allies or, alternatively,
leaves the territory controlled by enemy forces.

Article 92 provides that a prisoner who unsuccessful attempts to escape may be liable to
disciplinary punishment, but no more serious measures may be taken, even for repeat
offences.

Article 93 stipulates that attempts to escape shall not be an aggravating circumstance if a

prisoner of war is subject to judicial proceedings for a more serious offence committed during
the escape. Furthermore, offences committed in the course of an escape attempt that do not
involve physical violence shall be punished by disciplinary measures only.

Labour of Prisoners of War

According to Article 49 of Geneva Convention III, the detaining power may utilise the labour
of prisoners of war who are physically fit. Officers shall not be required to work, but they
may request work if they wish. Non-commissioned officers may only be required to do
supervisory work, unless they request otherwise. Article 50 then sets out the types of work
other prisoners may legally be required to do, including:

o camp administration or maintenance;

o agricultural work;
o mineral and manufacturing work;
o public works with no military character or purpose;
o transport and stores work with no military character or purpose;
o commercial business;

28
 o arts and crafts;
o domestic service; and
o public utility services with no military character or purpose.

No prisoner of war may be forced to do labour which is unhealthy, dangerous (such as

removing landmines) or humiliating. Working hours must not be excessive by local
standards; appropriate breaks and holidays must be provided. Prisoners of war engaged in
labour shall be paid a fair working wage.

Communication

Prisoners of war enjoy robust communication rights under Geneva Convention III.
Combatants are entitled to write to their families upon capture to provide details of their
address and state of health. According to Article 71, prisoners of war must be allowed to send
and receive letters and cards, which should be conveyed without delay.

Article 72 extends this protection to cover parcels containing food, clothing, medical
supplies, and recreational, educational and religious items. Correspondence to and from
prisoners of war may be censored by the authorities, but this must be done as swiftly as
possible.

Communication among detainees and between prisoners and camp authorities is also
protected. Article 78 grants prisoners of war the right to make requests and complaints to the
detaining authorities. Article 79 provides that prisoners’ representatives shall be appointed
within each camp to represent the detainees’ interests to camp authorities, the detaining
power and the ICRC.

Release of Prisoners of War

Articles 109 and 110 of Geneva Convention III state that prisoners of war who are seriously
sick or wounded should be repatriated to their home country. Prisoners are defined as being
seriously sick or wounded if their physical or mental fitness is gravely diminished and they
are not likely to recover within a year. Prisoners of war repatriated for poor health may not
later be redeployed on active military duties. All other prisoners of war are to be repatriated
without delay after the cessation of hostilities.

A prisoner of war who is entitled to be repatriated may not be kept back by the detaining
power merely because she or he has not fulfilled a disciplinary punishment. However,

29
prisoners facing serious criminal charges may be kept back to face trial. Upon repatriation, all
personal articles of value taken from prisoners of war must be returned. The remaining
balance of accounts kept in the names of prisoners, containing wages and money taken from
them upon capture, must be communicated to their home nation with a view to settling the
account following repatriation.

Death of Prisoners of War

Special procedures apply with respect to the death of prisoners of war. These are set out in
Article 120 of Geneva Convention III. Wills of prisoners of war should be drawn up so as to
be valid in their home countries. After death, the will must be sent back to the home country
without delay. A death certificate shall be issued for every death of a prisoner of war, noting
the date, place and cause of death, along with the date and place of burial and the information
necessary to identify the prisoner’s grave. Burial or cremation shall be preceded by a medical
examination to determine the cause of death. Prisoners of war are entitled to an honourable
burial, in accordance with their religious beliefs and traditions. Graves should be marked and
maintained. Prisoners should have individual graves unless unavoidable circumstances dictate
otherwise. Bodies may be cremated only for imperative reasons of hygiene or on account of
the deceased’s religion or express wishes. Every death or serious injury of a prisoner
suspected to be caused by another person, including detaining officials and other internees,
shall be the subject of an immediate enquiry, with a report to be sent to her or his home state.

STATUS OF SPIES, MERCENARIES AND UNPRIVILEGED

BELLIGERENTS

There are also some detainees who will not qualify as prisoners of war despite playing an
active role in the armed conflict. The three main categories are spies, mercenaries and
unprivileged belligerents.

Spies and mercenaries have traditionally been excluded from prisoner of war status under the
law of armed conflict. Parties may grant members of these classes prisoner of war status if
they wish, but they are not obliged to do so. The position of spies is covered in Article 46 of
Additional Protocol I. Spies are defined in that provision as military personnel engaged in
espionage (information gathering, sabotage and the like) who are acting clandestinely and are
not in uniform. The covert nature of spying operations is central to this definition. A member
of the armed forces who gathers information in uniform or who does so without deception or

30
false pretences will not be considered a spy. Article 46(1) stipulates that any person falling
within the above definition is not entitled to prisoner of war status when captured and ‘may
be treated as a spy’. The provision does not specify what being ‘treated as a spy’ means.
Traditionally, spies have risked summary execution, but this is now clearly prohibited. The
answer therefore seems to be that spies, unlike combatants, are not immune from punishment
for their hostile acts under the laws of the detaining power. Article 5 of Geneva Convention
IV stipulates that captured spies should be treated humanely and are entitled to a fair trial
before being subjected to any form of punishment. They should be treated as ‘protected
persons’ under the Convention insofar as this is consistent with the security of the detaining
power. However, they are regarded as having forfeited their rights of communication.

Mercenaries are defined under Article 47 of Additional Protocol I as persons who are not
nationals of a party to the conflict or members of the regular armed forces of a state and are
specifically recruited to fight in the conflict for a substantial material reward. The provision
states that mercenaries ‘shall not have the right to be a combatant or a prisoner of war’. This
means that mercenaries, like spies, are liable to punishment in accordance with the laws of
the detaining power.

They are entitled to the protections of Geneva Convention IV except as required by the
security of the detaining power. Furthermore, they are entitled at all times to the fundamental
guarantees listed in Article 75 of Additional Protocol I, including humane treatment and
procedural justice.

Unprivileged Belligerents are persons who are actively engaged in fighting, but for one
reason or another do not satisfy the definition of a combatant under Geneva Convention III or
Additional Protocol I. This may be because the armed group within which they operate is not
sufficiently well organised to count as being under responsible command or having an
internal disciplinary system. Alternatively, it may be because they do not distinguish
themselves from the civilian population. Article 44(2) of Additional Protocol I clarifies that
violating the law of armed conflict does not deprive a combatant of her or his right to be
considered a prisoner of war. The exception to this rule is a combatant who does not carry
arms openly when launching an attack. Additional Protocol I provides that a person falling
into this category is not a prisoner of war, but is nonetheless entitled to protections
‘equivalent in all respects’ to those afforded to prisoners of war. It is unclear whether such a
person is liable to punishment under the law of the detaining power in the same way as spies

31
and mercenaries. The wording of the provision suggests she or he is not, since such treatment
would not be ‘equivalent in all respects’ to prisoner of war status. The guarantees available to
them are similar to those enjoyed by spies and mercenaries. They will typically be entitled to
the protections of Geneva Convention IV, unless this is inconsistent with the security of the
detaining power13 or they are detained by their own state or its allies. They are further
protected by the fundamental guarantees in Article 75 of Additional Protocol I. Unprivileged
belligerents, like spies and mercenaries, are vulnerable to prosecution for their hostile acts
under the law of the detaining power, but they enjoy robust procedural safeguards.

The provisions mentioned above ensure that nobody detained as a result of armed conflict,
even a spy, mercenary or unprivileged belligerent, is entirely outside the reach of
international humanitarian law. Everyone enjoys at least a basic level of protection.

UNIT 7: Treatment of victims and prisoners of war

a) Protection of civilian persons in times of war

OCCUPATION:

What is occupation?

Article 42 of the 1907 Hague Regulations (HR) states that a " territory is considered occupied
when it is actually placed under the authority of the hostile army. The occupation extends
only to the territory where such authority has been established and can be exercised. "

IHL instruments and sources, occupation law norms generally share a common rationale,
which revolves around four general principles.

- First, the Occupying Power does not acquire any sovereignty over the territory it
occupies. In this respect, it is not entitled to bring about changes in the status and
intrinsic characteristics of the occupied territory.
- Secondly, the rights exerted by the Occupying Power are merely transitory and are
accompanied by the obligation to respect (unless absolutely prevented) the laws in
force in the occupied territory, as well as to maintain as normal a life as possible in
occupied territory. The law of occupation also requires the Occupying Power to
administer the occupied territory for the benefit of the local population while
preserving its own security needs. Overall, the main purpose of the limits imposed by

32
 IHL upon the Occupying Power primarily aims at providing a minimum of
humanitarian protection to the occupied civilian population.
- Thirdly, in the exercise of its powers, the Occupying Power must always take into
account two fundamental parameters: the fulfilment of its military needs and the
respect for the interest of the occupied population. IHL strikes a careful balance (p.
186) between these two. While military necessities in some instances may gain the
upper hand, they should nonetheless never result in a total disregard for the needs of
the local population. This principle shall apply to all the decisions and policies
undertaken by the occupier in the occupied territory.
- Fourthly, the Occupying Power must not exercise its authority in order to further its
own interests (other than military), or use the inhabitants, the resources, or other
assets of the territory it occupies for the benefit of its own territory or population.

When considering issues arising from occupation, these general principles governing
occupation ought always to be borne in mind. These principles underpin the main provisions
of the law of occupation as reflected in the Hague Regulations and GC IV.

According to their common Article 2, the four Geneva Conventions of 1949 apply to any
territory occupied during international hostilities. They also apply in situations where the
occupation of state territory meets with no armed resistance.

The legality of any particular occupation is regulated by the UN Charter and the law known
as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of
occupation applies – whether or not the occupation is considered lawful.

Therefore, for the applicability of the law of occupation, it makes no difference whether an
occupation has received Security Council approval, what its aim is, or indeed whether it is
called an “invasion”, “liberation”, “administration” or “occupation”. As the law of occupation
is primarily motivated by humanitarian considerations, it is solely the facts on the ground that
determine its application

Art 42 of The Hague regulation: occupation means territory placed under the authority of the
occupying powers.

Art 2 GC: occupation also includes those cases without armed resistance. (Extension of 42)

Authority: ICTR+ICTY

33
When does the law of occupation start to apply?

The rules of international humanitarian law relevant to occupied territori es become

applicable whenever territory comes under the effective control of hostile foreign armed
forces, even if the occupation meets no armed resistance and there is no fighting.

The question of " control " calls up at least two different interpretations. It could be taken to
mean that a situation of occupation exists whenever a party to a conflict exercises some level
of authority or control within foreign territory. So, for example, advancing troops could be
considered bound by the law of occupation already during the invasion phase of hostilities.
This is the approach suggested in the ICRC's Commentary to the Fourth Geneva
Convention (1958).

An alternative and more restrictive approach would be to say that a situation of occupation
exists only once a party to a conflict is in a position to exercise sufficient authority over
enemy territory to enable it to discharge all of the duties imposed by the law of occupation.
This approach is adopted by a number of military manuals.

What are the most important principles governing occupation?

The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations
(arts 42-56) and the Fourth Geneva Convention (GC IV, art. 27-34 and 47-78), as well as in
certain provisions of Additional Protocol I and customary international humanitarian law.

Agreements concluded between the occupying power and the local authorities cannot deprive
the population of occupied territory of the protection afforded by international humanitarian
law (GC IV, art. 47) and protected persons themselves can in no circumstances renounce their
rights (GC IV, art. 8).

When does occupation come to an end?

The normal way for an occupation to e nd is for the occupying power to withdraw from the
occupied territory or be driven out of it. However, the continued presence of foreign troops
does not necessarily mean that occupation continues.

A transfer of authority to a local government re-establishing the full and free exercise of
sovereignty will normally end the state of occupation, if the government agrees to the
continued presence of foreign troops on its territory. However, the law of occupation may
become applicable again if the situation on the ground changes, that is to say, if the territory

34
again becomes " actually placed under the authority of the hostile army " (H R, art. 42) – in
other words, under the control of foreign troops without the consent of the local authorities.

What is the situation of people deprived of their liberty, during and after occupation?

Prisoners of war are captured members of armed forces and associated militias who meet the
criteria laid down in the third Geneva Convention (GC III art. 4 A (2)); they are entitled to
the rights granted in the Convention. All other people held in occupied territory are protected
by the Fourth Geneva Convention (GC IV), apart from very few exceptions, such as the
nationals of the occupying power or its allies. However, in no case can persons deprived of
their liberty for reasons related to the situation of occupation fall outside the customary
minimum standards guaranteed in article 75 of Protocol I.

Prisoners of war and civilian internees must be released without delay after the end of
hostilities. However, those who are accused of an indictable offence may remain in captivity
until the end of criminal proceedings or completion of their sentence (GC III, art. 119 (5), GC
IV, art. 133 (2)). Until their release, and as long as they are under the authority of the occ
upant, all those in custody remain protected by international humanitarian law (GC III, art. 5
(1) and GC IV, art. 6 (4)).

Protected persons: Art 4 GC IV

- Art4-Art 2: only high contracting parties.

- Fallen into the hands of party to the conflict is interpreted widely. If a civilian is under
the authority of the party it is sufficient to grant the status of a protected person but
the condition of nationality will apply.
- The requirement that persons be in the hands of a party to the conflict means that they
are under the control of that party and there is no requirement of such persons to be
physically detained
- The issue in Tadić was whether residents of an occupied territory were entitled to be
treated as protected persons, even though they were of the same nationality as the
occupying forces. The ICTY held that the occupying forces could not rely on shared
nationality to avoid their obligations.
- Status as a protected person commonly arises in the context of occupation of territory
by a party to the conflict without the consent of the host state. The occupying power is
required to respect the laws and institutions of the occupied territory as far as
possible.

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 - Geneva Convention IV does not protect persons in the hands of a power allied with
their own state. The protected persons regime also does not typically assist residents
of occupied territories who are nationals of the new occupying state, although if they
belong to minority religious, ethnic or cultural group a case could be made that they
fall within the principle set out in the Tadić case. Geneva Convention IV provides that
nationals of the occupying state who previously sought refuge in the territory of the
occupied state may not be arrested, prosecuted, convicted or deported from the
occupied territory except for offences preceding the outbreak of hostilities.

RIGHTS UNDER PARTS 2&3

The protection of civilians in occupied territories is addressed by Part III of Geneva

Convention IV through what is known as the protected persons regime. Part III contains a
detailed scheme for protecting the rights of persons who find themselves under the control of
a foreign or enemy power. The protected persons regime aims to ensure that civilians who
find themselves in the hands of enemy powers are afforded certain fundamental guarantees.
They are entitled to respect for their persons, honour, family rights, religious practices and
customs. They are to be treated humanely and protected against all acts or threats of violence,
insults and public curiosity. They must be treated with equal consideration, without any
adverse distinction based, in particular, on race, religion or political opinion. Women are to
be protected against rape, prostitution or indecent assault. Protected persons are also offered
guarantees against physical or moral coercion; physical suffering or extermination; collective
penalties, intimidation and terrorism; and being taken hostage.

COLLECTIVE PUNISHMENTS: International humanitarian law also protects civilians

from punishment for acts that they have not personally committed. Collective penalties –
those imposed upon groups of persons for acts of parties with whom they are associated – are
prohibited. The principle of individual criminal responsibility, which is itself a norm of
customary international law, further militates against punishment on a collective basis. The
prohibition on collective punishment extends to internment and assigned residence of
inhabitants of occupied territories pursuant to Article 78 of Geneva Convention IV. These are
exceptional measures only to be taken on consideration of individual cases and on the basis
that the person in question poses a threat to security of the occupying power.

REPRISALS: Reprisals involve the purported right of a party to respond to a violation of the
laws of armed conflict with force or other retributive measures. Reprisals against civilians

36
and their property are prohibited under international humanitarian law. The prohibition
expressly extends to attacks against places of worship, food and water supplies, the natural
environment, dams, dykes and nuclear power stations. Reprisals against cultural property of
importance to the heritage of a people are also forbidden. implicit in Common Article 3 and
the requirement that the fundamental protections contained therein apply at any time and
place whatsoever. It is also closely connected to the principle of distinction. The ICTY
Appeal Chamber expressed the view in the Tadić decision that the prohibition against civilian
reprisals is a principle of customary law applying regardless of the type of conflict.

INTERNMENTS: IHL recognises that internment of civilian in some cases be necessary for
security but seeks to place practice within strict limits. Art 79 of GC 4 provides protected
person shall not be interned except for imperative security reasons or due to potential
commission of an offence. Protection of interned civilians are substantially identical to pows
for eg they may not generally be put to work except on a voluntary basis art 95

Vulnerable groups: journalists, children, women and civil defence organisations.

Civil Defence Org: The general protections extended under international humanitarian law to
civilian populations and objects are supplemented by principles concerning civil defence
organisations whose role is to assist the civilian population in times of conflict. ‘Civil
defence’ is defined in Additional Protocol I as ‘humanitarian tasks intended to protect the
civilian population against the dangers, and to help it to recover from the immediate effects,
of hostilities or disasters and also to provide the conditions necessary for its survival.’ The
definition encompasses a range of possible functions including, but not limited to, warning,
evacuation, management of shelters and blackouts, rescue, fire fighting and first aid. This
reflects the diverse roles such organisations have played in different conflicts.

How to determine nationality of civilians under article 4 of GC?

States not parties

Civilians of neutral state who has diplomatic relations with occupier

Co belligerents

What is the basis for ICRC protection activities for persons deprived of their freedom
during occupation and afterwards?

37
The ICRC has a legal right to visit anyone captured in relation to an international armed
conflict, including situations of occupation, on the basis of the Geneva Conventions and their
Additional Protocols (GC III, arts 9 and 126, GC IV, arts 10 and 143, AP I, art. 81).

If violence continues after the end of occupation, the ICRC's protection activities may have
the following legal bases:

In non-international armed conflicts, the ICRC bases its detention activities on article 3
common to the four Geneva Conventions (and Additional Protocol II, where applicable).
Article 3 establishes the ICRC’s right to offer its services to the parties to the conflict with a
view to engaging in relief action and visiting persons detained for reasons related to the
conflict.

In other situations of internal violence, which fall short of armed conflict, the ICRC may
offer its services based on its right of initiative laid down in the Statutes of the International
Red Cross and Red Crescent Movement (articles 5(2)(d) and 5(3)).

NALETILIĆ CASE ICTY: EFFECTIVE CONTROL OF OCCUPYING POWER

• occupying power must be in a position to substitute its own authority for those of the
enemy state. The enemy must have been rendered incapable of functioning as an
administrative authority.
• The enemies forces have surrendered, been defeated or withdrawn .
• Occupying power has a sufficient force present or the capacity to send troops within a
reasonable time to make the authority of the occupying power felt.
• A temporary administration has been established over the territory and the occupying
power has informed directions to the civilians.

Addressed question of attaining nationality automatically of new state formed

1. Aleksovski: Serbs automatically acquire citizenship/nationality of new state? Whether

they are entitles to status of protected persons? The nationality of victims for the purpose of
application of GC 4 should not be determined on the basis of formal national characteristics,
but rather upon an analysis of substantial relations, taking into consideration the different
ethnicities of the victims and perpetrators, their religion and their bond with the foreign
intervening state. Pg 81.

2. Pros v Tadic

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Prohibited attacks: under principles

MAIN ARTICLES:

AP 1 37,41,43,51,75,77

AP 2 Art 1, part 2 art 4, part 4 art 13,14,16

Geneva convention 4

UNIT 8: Limitations on the methods of warfare

a) General limitations on the methods of warfare

b) Protection of cultural property during times of armed conflict

Chapter 3 and 4 of textbook ; Obligations of journalists , ruses and perfidy

A) GENERAL LIMITATIONS ON THE METHODS OF WARFARE

"Means and Methods of Warfare" in brief means weapons, tactics and strategy applied in
armed conflicts. International humanitarian law (IHL) limits both these in order to achieve
the following objectives: • Distinguish at all times between civilians and combatants / civilian
objects and military objectives; and • Prohibit superfluous injury or unnecessary suffering to
combatants.

The following principles are paramount with respect to means and methods of warfare:

• The only legitimate object of war is to weaken the enemy’s military forces, for which
it is sufficient to disable the greatest possible number of enemy combatants;
• The right to choose methods and means of warfare is not unlimited;
• It is prohibited to employ methods (and means) of warfare of a nature to cause
superfluous injury or unnecessary suffering; and
• In development, acquisition or adoption of new means or methods of warfare it must
be determined whether their employment is not prohibited in some or all
circumstances.

Following are some of the prominent prohibited/limited use weapons categories under IHL: •
Explosive bullets: • Dum-dum bullets; • Certain conventional weapons like; o Mines, o
Incendiary weapons, o Weapons involving non-detectable fragments, o Blinding weapons, o
Explosive remnants of war, and o Cluster munitions. • Chemical weapons; • Poison; •
Bacteriological and biological weapons; and • Nuclear weapons
39
The limitations or prohibitions to resort to specific methods of warfare stipulated in IHL are
predicated on three premises: • The choice of the methods of warfare is not unlimited;142 •
The use of methods of a nature to cause unnecessary suffering or superfluous injury is
forbidden;143 and • The only legitimate object of war is to weaken the military forces of the
enemy

The balance between military necessity and humanity is achieved through the application of
the rules of limitation, distinction, and proportionality

Prohibition to cause superfluous injury or unnecessary suffering: While there is no universal

agreement on what it means, States generally agree that suffering that has no military purpose
violates the rule. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (8 July 1996), the International Court of Justice (ICJ) found that superfluous injury
or unnecessary suffering consisted harm that uselessly aggravated the suffering of
combatants, that is to say “a harm greater than that unavoidable to achieve legitimate military
objectives.”

For example, it may be argued that to threaten that there will be no survivors (denial of a
quarter) causes unnecessary suffering, i.e. suffering that serves no military purpose, and is
prohibited

Tutia, another country in Eurasia, has developed an improvised landmine which will emit
deadly poisonous gas on stepping on it and thereby killing any living being in 5 KM
diameter. The Prime Ministers of each country has asked their Military Commanders and
Legal

Lumnia, a country in Eurasia has developed a stun gun which emits a special electromagnetic
wave that will paralyse the combatants for hours if it is used. However, at the same time it
may also incapacitate the person mentally for the rest of his life. It is also impossible to use
the weapon with precision to a specific target.

RUSES AND PERFIDY

It is important to distinguish in this context between ruses of war, which are permitted by
international humanitarian law, and perfidy, which is prohibited. The prohibition on perfidy
can be found in Article 23 of the Hague Regulations, which states ‘it is especially forbidden
to make improper use of a flag of truce, of the national flag or insignia or uniform of the
enemy, as well as the distinctive badges of the Geneva Convention’. Article 24, by contrast,

40
states that ‘ruses of war and the employment of measures necessary for obtaining information
about the enemy are considered permissible’.

A more recent definition of perfidy can be found in Article 37(1) of Additional Protocol I,
which provides that ‘acts inviting the confidence of an adversary to lead [her or] him to
believe that she or he is entitled to, or obliged to accord, protection under the rules of
international humanitarian law, with intent to betray that confidence, shall constitute perfidy’.

Some examples are then given, including:

● feigning an intent to negotiate by using a flag of truce or surrender;

● feigning incapacitation by wounds or sickness;

● feigning civilian or non-combatant status;

Contrasted with Article 37(2) of Additional Protocol I, which holds that ‘ruses of war are not
prohibited. Such ruses are acts which are intended to mislead an adversary but which infringe
no rule of international humanitarian law because they do not invite the confidence of an
adversary with respect to protection under that law’. Examples of ruses set out in the
provision include the use of camouflage, decoys, mock operations and misinformation.

A less blatant recent example of misuse of the Red Cross emblem in armed conflict arose in
the context of the civil war in Colombia. On 2 July 2008, Colombian security forces rescued
15 hostages, including former presidential candidate Ingrid Betancourt, who had been held
for up to ten years by the Revolutionary Armed Forces of Columbia (FARC). The rescue was
widely hailed as a daring coup: it involved the use of bogus communications to persuade
FARC rebels to release the hostages to a group posing as aid workers. Photographs and video
footage taken of personnel about to embark on the rescue mission appeared to show one man
wearing a bib bearing Red Cross insignia. The use of the Red Cross symbol in this context
constitutes a clear violation of international humanitarian law, notwithstanding that the
purpose of the ruse was to rescue hostages. Apart from the fact that the Geneva Conventions
limit use of the Red Cross emblem to medical and humanitarian workers, wearing the
emblem in order to pose as an aid worker constitutes perfidy under Article 37 of Additional
Protocol 1.

PROTECTION

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A variety of acts are prohibited under Common Article 3, including violence to life and
person, taking of hostages, outrages upon personal dignity (in particular humiliating and
degrading treatment) and sentences imposed without due process of law. International
humanitarian law further provides that persons prosecuted for offences related to the armed
conflict must be tried according to recognised principles of judicial procedure. Women who
are detained should be held in separate quarters and supervised by women. Families are to be
accommodated together wherever possible.

JOURNALISTS

Journalists play an important role in armed conflicts, risking their lives to provide coverage
of events to the outside world. The perilous nature of the war correspondent’s role has been
brought home by the fate of journalists such as Daniel Pearl, who was kidnapped and
beheaded in 2002 while covering the armed conflict in Pakistan. Journalists are covered by
the protections afforded to civilians under international humanitarian law, but they are also
the subject of special provisions recognising the risks of their investigative role. Journalists,
like civilians, may be injured through being caught up in hostilities or bombardment of towns
and cities. However, they may also be targeted for political reasons or because of their work
in exposing those guilty of violence or corruption.Geneva Convention III provides that
accredited war correspondents are entitled to prisoner of war status where they fall into the
hands of the enemy. Journalists who are not accredited war correspondents are covered by
Article 79 of Additional Protocol I, which reiterates that a journalist engaged in professional
activities is to be considered a civilian provided that she or he takes no action adversely
affecting her or his civilian status, such as playing a direct role in hostilities. A card
confirming the journalist’s status may be issued by her or his state of nationality. This
provision does not add substantially to the protections enjoyed by journalists due to their
civilian status, but it reinforces the principle that they must not be targeted because of their
profession.

B) PROTECTION OF CULTURAL PROPERTY DURING TIMES OF ARMED

CONFLICT

• The relevant modern international humanitarian law concerning protection of

cultural property can be traced back to Leiber Code published in 1863
(Instructions for the Governance of the Army of the United States in the Field).

42
 This Code stressed that inter-alia works of arts must be protected from injury even
in fortified places while these were being bombarded.
• The 1954 Hague Convention on the Protection of Cultural Property in the Event
of Armed Conflict encourages States to adopt peacetime protective measures for
the safeguarding of cultural property. The Convention also requires States Parties
to implement criminal sanctions for violations of the Convention and encourages
States Parties to promote the Convention. Finally, it creates a form of protection
(called “special protection”) for cultural property.
• The 1954 First Protocol, which prohibits the export of movable cultural property
from an occupied territory and requires its return to the territory of the State from
which the property was exported. The Protocol also prohibits the retention of
cultural property as war reparations
• The 1999 Second Protocol, which strengthens provisions of the Convention,
especially the provisions regarding the safeguarding of cultural property and
conduct during hostilities. It also creates a greater form of protection (called
“enhanced protection”) for cultural property of the greatest importance for
humanity. The 1999 Second Protocol also defines sanctions triggered by serious
violations against cultural property. Finally, this Protocol creates an institutional
element: the Committee for the Protection of Cultural Property in the Event of
Armed Conflict.
• The four Geneva Conventions adopted in 1949 on Protection of War Victims
contained no specific provision for the protection of cultural property, but they
reinforced already existing provisions of customary international law and the
Hague Conventions of 1899 and 1907 on civilian population and civilian property
by prohibiting any destruction by the Occupying Power of real and personal
property belonging to private persons, or to the state, except where such
destruction is rendered absolutely necessary by military operations

The following criteria were agreed for placing a cultural property under enhanced protection–

- cultural heritage of greatest importance for humanity;

- protected by adequate domestic, legal and administrative measures recognizing its
exceptional cultural and historical value ensuring the highest level of protection; and
- not used for military purposes or to shield military sites. The Party which has control
over such cultural property has also to make a declaration that it will not be so used.

43
 • Under the International Humanitarian Law instruments, for example, Additional
Protocol-I, Statute of the International Tribunal for former Yugoslavia and Rome
Statute of the International Criminal Court, willful destruction of cultural property
is treated as a war crime and commands universal jurisdiction. The obligation in
such case is to ‘either try or extradite’. The 1954 Hague Convention however only
puts an obligation on High Contracting Parties to take all necessary steps under
their criminal jurisdiction to prosecute and impose penal or disciplinary sanctions
upon those persons who commit or order to be committed a breach of the
Convention

UNIT 9: Enforcement of International Humanitarian Law

a) Enforcement of International conventions

b) State practice: India.

India relationship with ihl-niac in India and application of AP II.

Example the pellet gun case

India’s views on AP II are not the same as AP I. It was apparently against AP II. It was of the
opinion that internal armed conflicts were law and order problems falling under the domestic
jurisdiction. It further observed that common Article 3 was justified in four Geneva
Conventions because it was required to address the national liberation movements then. Since
the national liberation movements were covered in AP I, India found that there was no reason
for the adoption of a Protocol specifically dealing with the internal armed conflicts.

However, it did not oppose the adoption of AP II during the negotiations. India’s subsequent
practice testifies to a changed position on internal conflicts. It became a party to the treaties
which are applicable to internal conflicts. These are: Protocol on Prohibitions or Restrictions
on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol
II as amended on 3 May 1996), Convention on Certain Conventional Weapons (CCW) as
amended on 21 December 2001 and the Optional Protocol to the Convention on the Rights of
the Child on the Involvement of Children in Armed Conflict. Acceptance of these treaties
makes it clear that no longer India subscribes to the view that internal conflicts, other than
national liberation movements, are law and order situations. It seems at least clear from the

44
positions taken at the time of negotiations and from the subsequent practice that there is no
major hindrance in India becoming a party to the APs.

Use of human shields under IHL

The use of human shields is considered a war crime and is banned as per Rule 97 of the IHL.
The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and
the Statute of the International Criminal Court are couched in terms of using the presence (or
movements) of civilians or other protected persons to render certain points or areas (or
military forces) immune from military operations. Example: J&K.

Enforcement ICRC Article:

1. Grave breach of GC (war crimes and crimes against humanity) can also be addressed by
the ICJ in the form of directing the state parties to protect the civilians and provide a
reparations to the victims of the conflict.

2. Principle of complimentarity to firsts exhaust domestic measures. Even when UNSC

recommends domestic measures have to be exhausted.

3. If UNSC refers matter to office of the prosecutor of ICC then they may exercise the
jurisdiction upon a state which is not a party to the Rome statute. Universal jurisdiction. Or

4. Ad Hoc jurisdiction over state which submits a written agreement accepting the ad hoc
jurisdiction.

UNIT 10: Introduction to International Refugee Law

a) Definition of Refugee
b) General principles for determining refugee status
c) Migrants, immigrants, internally displaced and stateless persons.

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951

Aim & Purpose

The 1951 Convention serves a multifaceted purpose within the international legal framework
for refugees. Primarily, it functions to:

1. Establish a Legal Definition of Refugee: The Convention offers a codified

definition of a refugee, characterized by a well-founded fear of persecution based on

45
 enumerated grounds – race, religion, nationality, membership in a particular social
group, or political opinion. This definition provides a clear standard for identifying
individuals eligible for refugee protection.

2. Articulate Refugee Rights: The Convention outlines a comprehensive framework of

rights afforded to refugees. Notably, it enshrines the principle of non-refoulement,
prohibiting the return of refugees to a country where they face a threat of persecution.
Additionally, it guarantees fundamental rights such as access to basic necessities and
the right to seek asylum.

3. Shared Responsibility and International Cooperation: Recognizing the often-

global nature of refugee crises, the Convention aims to promote international
collaboration in addressing refugee issues. It encourages signatory states to work
together in protecting refugees and finding durable solutions for them. These solutions
could involve resettlement in a third country, local integration within the host country,
or, when conditions permit, voluntary repatriation to their country of origin.

REFUGEE DEFINITION

Article 1. - Definition of the term "refugee"A refugee is someone who has been forced to flee
his or her country because of persecution, war, or violence. A refugee has a well-founded fear
of persecution for reasons of race, religion, nationality, political opinion or membership in a
particular social group. Most likely, they cannot return home or are afraid to do so. War and
ethnic, tribal and religious violence are leading causes of refugees fleeing their countries.

For the purposes of the present Convention, the term "refugee" shall apply to any person
who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928
or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14
September 1939 or the Constitution of the International Refugee Organization;

Decisions of non-eligibility taken by the International Refugee Organization during the

period of its activities shall not prevent the status of refugee being accorded to persons who
fulfil the conditions of paragraph 2 of this section;

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social

46
group or political opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a result of such
vents, is unable or, owing to such fear, is unwilling to return to it.

DIFFERENT FROM:

Migrant: Migrants move from one country to another usually to find work, although there
may be other reasons for migrating such as to join family members. Some move voluntarily,
while others are forced to leave because of economic hardship or other problems. Regardless
of their status in a country, both regular and irregular migrants have human rights, including
the right to freedom from slavery and servitude, freedom from arbitrary detention, freedom
from exploitation and forced labour, the right to freedom of assembly, the right to education
for their children, equal access to courts and rights at work. These rights are laid out in the
Migrant Workers’ Convention (1990) as well as other human rights treaties.

Internally displaced person (IDP) : An internally displaced person (IDP) is a person who
has been forced to flee his or her home for the same reason as a refugee, but remains in his or
her own country and has not crossed an international border. Unlike refugees, IDPs are not
protected by international law or eligible to receive many types of aid.

Immigrant / Returnee: A returnee is a refugee who has returned to his or her home country.
The majority of refugees prefer to return home as soon as it is safe to do so, after a conflict
and the country is being rebuilt. The UN High Commissioner for Refugees (UNHCR)
encourages voluntary repatriation, or return, as the best solution for displaced people.

Stateless Person: A stateless person is someone who is not a citizen of any country.
Citizenship is the legal bond between a government and an individual, and allows for certain
political, economic, social and other rights of the individual, as well as the responsibilities of
both government and citizen. A person can become stateless due to a variety of reasons,
including sovereign, legal, technical or administrative decisions or oversights. The Universal
Declaration of Human Rights underlines that “Everyone has the right to a nationality.”

GROUNDS FOR CANCELLATION

This Convention shall cease to apply to any person falling under the terms of section A if:

(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or

47
(2) Having lost his nationality, he has voluntarily reacquired it; or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new
nationality; or

(4) He has voluntarily re-established himself in the country which he left or outside which he
remained owing to fear of persecution; or

(5) He can no longer, because the circumstances in connection with which he has been
recognized as a refugee have ceased to exist, continue to refuse to avail himself of the
protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this
article who is able to invoke compelling reasons arising out of previous persecution for
refusing to avail himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because the circumstances in connection with
which he has been recognized as a refugee have ceased to exist, able to return to the country
of his former habitual residence.

GROUNDS FOR REFUSAL

This Convention shall not apply to persons who are at present receiving from organs or
agencies of the United Nations other than the United Nations High Commissioner for
Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such
persons being definitively settled in accordance with the relevant resolutions adopted by the
General Assembly of the United Nations, these persons shall ipso facto be entitled to the
benefits of this Convention.

This Convention shall not apply to a person who is recognized by the competent authorities
of the country in which he has taken residence as having the rights and obligations which are
attached to the possession of the nationality of that country.

The provisions of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that:

48
( a ) He has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such
crimes;

( b ) He has committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;

( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations.

UNIT 11: The legal and institutional framework for refugee protection

a) Origin and development of international refugee principles

b) 1951 Refugee Convention and the 1961 Protocol.

Rights under the Convention : The first tier of rights applies merely on the basis of presence
within a state party’s territory, even if this presence is illegal. The second tier of rights are to
be granted when refugees are ‘lawfully present’ in the host state. Other rights are accrued
when refugees are ‘lawfully staying’ in a state party (usually after recognition of their refugee
status by the state concerned).

• Freedom of religious practice and religious education (no reservations

permitted)
• Public elementary education
• Public relief, social security and labor laws
• Access to courts and legal assistance (no reservations permitted)
• Gainful Employment and Welfare.
• On The Issue of Identity Papers and Travel Documents.
• On The Applicability of Fiscal Charges and
• On Their Right to Transfer Their Assets to Another Country Where They
Have Been Admitted for The Purposes of Resettlement

UNIT 12: The role of the UNHCR in the various refugee crises

a) Intervention under the League of Nations

b) Intervention under the United Nations

In the late 1940s a UN body was required to oversee global refugee issues. After WWII there
was a refugee crisis, with millions of people displaced in Europe. In the late 1950s, uprisings
and conflict led to UNHCR involvement outside of Europe. As colonies in Africa gained

49
independence in the 1960s, large numbers of refugees fled unstable and cruel governments.
Unlike in Europe, these countries usually fled into equally unstable countries.

Purpose of UNHRC:

• To protect the rights and well-being of refugees.

• Ensure that everyone can exercise the right to seek asylum.
• Be non-political and humanitarian.
• Strive to find permanent solutions for refugees such as to return home voluntarily,
integrate locally or to resettle in a third country.

Role of UNHRC:

• Ensures the basic human rights of people in their countries of asylum

• Ensures refugees will not be returned involuntarily to a country where they could
face persecution
• Promotes or provide legal and physical protection, and minimize the threat of
violence
• Aims to provide at least a minimum of shelter, food, water and medical care
• Helps with refugee registration, assistance and advice on asylum applications,
education and counselling.
• Support returnees with transport home and assistance packages
• Works with governments to find practical and humanitarian responses
• In countries that haven’t signed the Refugee Convention, UNHCR is generally
responsible for protecting refugees.

UNIT 13: International Refugee Principles

a) Asylum and principle of non-refoulement

b) Durable Solutions
c) Safe Haven
d) Principle of Family Unity

ASYLUM AND PRINCIPLE OF NON-REFOULEMENT

Asylum-seeker: When people flee their own country and seek sanctuary in another country,
they apply for asylum – the right to be recognized as a refugee and receive legal protection

50
and material assistance. An asylum seeker must demonstrate that his or her fear of
persecution in his or her home country is well-founded.

Difference b/w Refugee and Asylum seeker: A refugee is someone who has been forced to
flee their home country due to persecution, war, or violence. They have already left their
home country and have been recognized as a refugee by the country in which they have
sought protection. An asylum seeker, on the other hand, is someone who has left their home
country due to persecution, war, or violence, but has not yet been granted refugee status.
They have applied for protection in another country and are waiting for a decision on their
application.

Non refoulment : A refugee’s right to be protected from forced return, or refoulement, is the
cornerstone of international refugee protection. It is contained in Article 33(1) of the 1951
Convention, which states:

“No Contracting State shall expel or return (‘refouled’) a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.”

All refugees are entitled to protection from refoulement – including those who have not been
formally recognized as such. This means that asylum seekers whose status has not yet been
determined by the authorities are protected from forced return.

Article 33 (2) of the 1951 Convention outlines two exceptions to the principle of non-
refoulement. It permits the refoulement of a refugee if there are reasonable grounds for
regarding him or her as a danger to the security of the country where he or she is present or if,
having been convicted of a particularly serious crime, the refugee constitutes a danger to the
community. However, Article 33(2) does not release States from their obligations under
international human rights law.

Article 3 of the Convention against Torture prohibits the expulsion or return of anyone to a
place where there is a substantial danger of torture. Articles 6 and 7 of the International
Covenant on Civil and Political Rights have also been interpreted as prohibiting expulsion or
return to torture, or to cruel, inhuman or degrading treatment or punishment or the death
penalty. Several regional human rights instruments have similar provisions.

What are the State’s responsibilities? : The prohibition of refoulement

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 • Applies to all refugees, and to asylum-seekers whose status has not yet been
determined, as this group may include refugees;
• Applies wherever a state exercises jurisdiction, including at the border and
extraterritorially, for instance in the context of interception on the high seas;
• Engages the State’s responsibility as soon as someone claims to be at risk or to
fear return to his or her country of origin or any other country. There is no single
correct formula or phrase for how this fear needs to be expressed;
• Requires States to respect the principle of non-discrimination, and to refrain from
restricting entry on the basis of a person’s nationality, religion, ethnicity, health
status, or other criteria

DURABLE SOLUTIONS-

It is important to put in place measures that make it possible for refugees to be self-reliant
pending a durable solution; to establish a legal framework and systems to ensure that refugees
are able to enjoy more rights as time passes; and that all solutions, including voluntary
repatriation and integration in the country of asylum, can be carried out in safety and dignity.
. The task of seeking “permanent solutions” for the problem of refugees was assigned to
UNHCR when the organization was created. The term most often used today is “durable
solutions”. This can be accomplished through voluntary repatriation to the refugee’s country
of origin, through settlement and integration in a country of asylum that the refugee reached
spontaneously (“local integration”) or by means of organized resettlement. UNHCR’s Statute
refers broadly to these pathways to solutions when it speaks of the voluntary repatriation of
refugees and of their “assimilation” into new national communities.

Laying the groundwork for solutions:

• Voluntary repatriation: it should be voluntary (free choice) refugees want to go

back to their home country , UNHCR
• Local integration: Settling in the host community: for refugees who cannot return
home and for whom resettlement is not an option , they must settle and integrate
in their country of asylum.
• Resettlement (Resettlement involves the transfer of refugees from an initial
country in which they have sought safety to another State that agrees to admit
them as refugees, and grant them permanent residence and the opportunity for
eventual citizenship. Resettlement is not a right and States are not obliged to

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 accept refugees for resettlement. However, it is a powerful protection tool and an
important signal of international solidarity. Resettled refugees are on the pathway
to integration from the moment they arrive in their adopted country)
• Innovative approaches to resettlement and other migration channels
• Naturalization (In the spirit of Article 34 of the 1951 Convention, support the
enactment of other measures to facilitate the integration and eventual
naturalization of refugees in the host State).
• Comprehensive approaches to resolve protracted refugee situations
• ⁠complimentary pathways are safe and regulated avenues for persons in need of
international protection to lawfully move to a third country.

PRINCIPLE OF FAMILY UNITY - The integrity of the refugee family is a legal principle
and a humanitarian goal; it is also an essential framework of protection and a key to the
success of durable solutions that can restore a refugee to something approximating a normal
life. Although the right to seek and enjoy asylum in another country is an individual human
right, the individual refugee should not be seen in isolation from his or her family. The
drafters of the 1951 Convention relating to the Status of Refugees. linked a protection regime
premised on the individual’s fear of persecution to the family unity principle in a strongly
worded recommendation in the Final Act of the diplomatic Conference that adopted the
Convention.

The States that are members of the Executive Committee of UNHCR have repeatedly
emphasized the importance of family reunion.

SAFETY ZONE

A safety zone maybe defined as a clearly demarcated space, individuals fleeing danger can
seek safety within a country. Parallels can be drawn with the help of safety zones under the
4th geneva convention and ap 1. the aim of creating hospitals and safety zones is to establish
areas removed from the effect of the armed conflict for the safety of wounded, sick and aged
persons and other vulnerable groups

CONCEPT OF MANDATE REFUGEES - person who meets the criteria of the UNHCR
statute and qualifies for the protection of the UNHCR regardless of whether or not they are in
a country that is party to the refugee convention.

PRINCIPLE OF BURDEN SHARING:

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the principle of burden sharing which requires states to cooperate in dealing with the global
refugee problem is not merely a moral but a legal principle. It is arguably a principle of
customary international law. The origin of the principle can be traced to the 1951 convention
under its preamble-

The grounds of asylum may place unduly heavy burdens on certain countries, and that is
satisfactory solution of a problem of which the un has recognised the international scope and
nature cannot therefore be achieved without international cooperation.

UNIT 14: International Refugee Law : Success or failure?

a) Challenges in the implementation and enforcement of International Refugee Law

CLIMATE REFUGEES

Case Law: Teitiota v New Zealand

The Human Rights Committee rejected the claim for the following reasons:

1. Persecution under the 1951 convention refers to man made persecution and climate
cannot fall under this definition.

2. 1951 Convention has no mention of climate refugees as a ground under article 1(a).

3. There is no evidence of actual or imminent harm to the author: The Tribunal cited
academic commentary stating that under article 6 of the Covenant, arbitrary
deprivation of life involves interference that is: (a) not prescribed by law; (b) not
proportional to the ends sought; and (c) not necessary in the particular circumstances
of the case. On that basis, the Tribunal accepted that the right to life involves a
positive obligation on the part of the State to fulfill that right by taking programmatic
steps to provide for the basic necessities for life. However, the author could not point
to any act or omission by the Government of Kiribati that might indicate a risk that he
would be arbitrarily deprived of his life within the scope of article 6.

JUDGEMENT

1. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is
of the view that the facts before it do not permit it to conclude that the author’s
removal to Kiribati violated his rights under article 6 (1) of the Covenant.

2. 1951 Convention does not cover persecution based on purely climate issues.

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3. The Court did not rule out the possibility that environmental degradation resulting
from climate change or other natural disasters could “create a pathway into the
Refugee Convention or other protected person jurisdiction”. (That is it should violate
right to life under article 6 of the ICCPR)

While, the court has denied the application of the author in the above mentioned case, the
same cannot be a precedent to conclude that climate refugees find no protection at all
under the 1951 Convention or IHRL (particularly ICCPR/UNCAT).

1. Applicant’s claim was unsuccessful, the ruling has nevertheless been lauded as
‘landmark’ because the HRC accepted that states have an obligation not to forcibly
return individuals to places where climate changes pose a real risk to their right to
life. Consequently, it represents a significant jurisprudential development in the
protection of climate refugees under international human rights law.

2. In 2020, the UNHCR too commented on the need and possibility of recognition of
climate refugees: People seeking international protection in the context of the adverse
effects of climate change or disasters may have valid claims for refugee status. They
may have a well-founded fear of persecution under Article 1A(2) of the 1951
Convention, or be compelled to seek protection outside their own country owing to
events seriously disturbing public order under Article I(2) of the 1969 OAU
Convention and Conclusion III(3) of the 1984 Cartagena Declaration. In addition,
there may be grounds for international protection under general international human
rights law, i.e. non-refoulement obligations, including the right to life. This is
particularly relevant in regions where the 1969 OAU Convention and the 1984
Cartagena Declaration do not apply. Whether such a claim for protection arises from
sudden or slow-onset effects of climate change or disasters, States are bound to ensure
access to a fair and efficient RSD procedures under which the need for international
protection is assessed Legally speaking, if climate and conflict collectively pose a risk
then a refugee status may be granted.

3. The argument that persecution is man made can be refuted on the grounds that climate
change is caused by human based decisions and therefore can be covered under the
1951 Convention.

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 To sum up, the convention can include persecution due to climate change along with a
threat to right to life or any other ground of persecution as given under the definition of
refugee.

CHALLENGES IN THE IMPLEMENTATION AND ENFORCEMENT OF

INTERNATIONAL REFUGEE LAW

1. Limited resources: Many countries that are signatories to international refugee law
lack the necessary resources to provide adequate protection and support to refugees
and asylum seekers. This can lead to a lack of basic services, such as healthcare and
education, and can leave refugees vulnerable to exploitation and abuse.

2. Political and legal barriers: Some countries may be reluctant to provide protection to
refugees and asylum seekers due to political or legal barriers. For example, some
countries may have restrictive immigration policies or may be reluctant to recognize
refugees from certain regions or countries.

3. Lack of coordination: The protection of refugees and asylum seekers requires

cooperation and coordination between different actors, including states, international
organizations, and NGOs. However, there is often a lack of coordination between
these actors, which can result in inefficiencies and gaps in protection.

4. Enforcement mechanisms: Although international refugee law is binding, there are

often limited mechanisms for enforcement. This can make it difficult to hold states
accountable for violations of refugee rights and can lead to a lack of consequences for
non-compliance.

5. Divergent interpretations: International refugee law can be subject to differing

interpretations by different actors, which can result in inconsistencies in
implementation and enforcement.

6. Refugee crisis and mass influx: In the case of a refugee crisis or mass influx, it can be
difficult for states and other actors to provide adequate protection and support to all
refugees and asylum seekers. This can result in overcrowding in refugee camps,
inadequate access to basic services, and a lack of legal protection

7. Gender based violence: Women fleeing gender-based violence continue to struggle to

be recognised as refugees, despite UNHCR and others maintaining that ‘properly

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 interpreted’ the Convention on the Status of Refugees 1951 (CSR) covers gender-
related claims. One reason for this is the difficultly in establishing a connection
between gender-based violence and the ‘Convention grounds.

8. Women vulnerability: It is the female refugees across the world are highly vulnerable
to all forms of sexual and physical violence. In addition to the dangers women face
from contesting armed groups, once on the move from the conflict zone, they are also
at risk of being brutalised by human traffickers or even border security forces. Even
after exiting the conflict zone, safety can be elusive. Staying in a refugee camp within
the country of origin or seeking protection elsewhere brings serious threats to
women’s security, freedom and health.

UNIT 15: Laws relating to refugees in India

a) National framework for refugee protection in India

b) Role played by the National Human Rights Commission, SAARC and other
institutions.

While India has been human and generous towards refugees, India has signed neither the
1951 United Nations Refugee Convention nor its 1967 Protocol. India is also yet to frame a
coherent and uniform law in addressing the issue of asylum. The term “refugee” is nowhere
mentioned in any domestic laws of India.

There is no legislation on the issue, this policy has traditionally been based on a combination
of ad hoc executive policies and judicial pronouncements, and thus lacks any formal
structure. Although, Asylum Bill, 2015 was introduced by a private member. The bill
proposes that this law “will reflect the leading role India has played in sheltering those
fleeing persecution”.

Foreigners Act, 1946, fails to address the peculiar problems faced by refugees as a class. It
also gives unbridled power to the Central government to deport any foreign citizen. Further,
the constitution of India also respects the life, liberty, and dignity of human beings under
Article 21.

Other Legislations in India:

• Foreigners Act of 1946: Under Section 3, the Central government is empowered

to detect, detain and deport illegal foreign nationals.

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 • Passport (Entry into India) Act, 1920 : Under Section 5, authorities can remove an
illegal foreigner by force under Article 258(1) of the Constitution of India.
• Registration of Foreigners Act of 1939: Under this, there is a mandatory
requirement under which all foreign nationals (excluding overseas citizens of
India) visiting India on a long-term visa (more than 180 days) is required to
register themselves with a Registration Officer within 14 days of arriving in India.
• Citizenship Act, 1955: It provided provisions for renunciation, termination, and
deprivation of citizenship.
• Further, Citizenship Amendment Act, 2019 (CAA) seeks to provide citizenship
only to Hindu, Christian, Jain, Parsi, Sikh, and Buddhist immigrants persecuted in
Bangladesh, Pakistan, and Afghanistan.

Status of Refugees: For those refugees registered directly by the Government such as those
from Sri Lanka, they are entitled to Aadhaar cards and PAN cards to enable their economic
and financial inclusion. They can have access to national welfare schemes and contribute
effectively to the Indian economy. However, for those registered with UNHCR, such as
refugees from Afghanistan, Myanmar and other countries, while they have access to
protection and limited assistance services, they do not possess government-issued
documentation. Thus, they are unable to open bank accounts and don’t get benefit from all
government welfare schemes, and are thus inadvertently left behind.

India’s Non-refoulment policy: Non-refoulement is the principle under international law

which states that a person fleeing persecution from his own country should not be forced to
return to his own country. As part of customary international law, the policy of non-
refoulement prevents a country from expelling refugees to countries where their lives or
liberties would be threatened. India gave Tibetan refugees arriving in the 1960s and 1970s
preferential treatment compared to the other refugee communities living in India for a variety
of reasons. India bases its treatment of various refugee groups on political grounds, resulting
in an unstable and ever-changing domestic policy

Rohingya Issue: The International Court of Justice (ICJ) passed an order in the case of
Gambia against Myanmar about the treatment of the Rohingya in Myanmar. The UN and
other international bodies have said that Myanmar conducted genocide against Rohingyas.
India has been in denial. The Rohingya to be pushed back to their country of origin.
Rohingya refugees fleeing what the world now recognizes as genocidal conditions in

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Myanmar have not been permitted to enter the country and have been denied appropriate
human and humane conditions of work.

Role of NHRC : The National Human Rights Commission (NHRC) called for a national law
to end ad hoc-ism and ambiguity in dealing with refugees and asylum seekers in India.
During an online open discussion (2022), it was unanimously decided that a national law that
includes all the best practices implemented so far is needed to ensure uniformity and legal
sanctity in protection of human rights of refugees and asylum seekers across the country.

• The Chakma refugees, the tribal groups of Chittagong Hill Tracts (CHT) consisting of
Chakma, Murangs and Tripura’s migrated to the territories of Assam, Tripura,
Arunachal Pradesh, Mizoram and Meghalaya after the partition in 1947. During 1963,
about 45,000 Chakma fled to India from East Pakistan as victims of the Kaptai
Hydroelectric project that inundated their homelands. They multiplied and their
numbers swelled to 85,000.

• In 1959, the Dalai Lama, a religious and political leader and his followers fled Tibet
and came to India seeking asylum. Asylum was granted to them by the then Prime
Minister of India, Mr.Jawaharla1 Nehru, and these Tibetan refugees continue to stay
in India even today.

• The existence of the cold war period coupled with the Soviet Union's invasion of
Afghanistan in 1979 resulted in a large-scale migration of the Afghans into Pakistan.
Prior to this, there were movements of the Afghans into Pakistan after the coup in
1973. However, the continued infighting kept the problem alive and Pakistan has
about 1,200,000 Afghan refugees even today. India also hosted about 40,000 Afghan
refugees; their status being determined by the UNHCR.

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