CHAPTER 1 : Introduction to International Humanitarian

Law

1.2 What is International Humanitarian Law?

1.2.1 What do you think?

What comes in your mind when you read the words "International Humanitarian Law"?

Please choose 3 words that come to mind when you think about international humanitarian law.

All of the words you have chosen will be put together in a Word Cloud. The more frequently a word is chosen,
the more prominent it will be in the picture.

1.2.2 What's in a name?

In your response to the Wordcloud, you may have used terms such as the 'law of war' or the 'laws of armed
conflict'...

These words are often treated as synonyms for international humanitarian law, particularly in the media.
However, as experts we should be cautious! Each term has its own politics and history.

The various titles of IHL

We will be talking about international humanitarian law. That expression may be understood in a very broad
sense as covering any rule of international law, applying both in times of peace and war, which has a
humanitarian purpose. This would include branches of international law such as Human Rights Law, Refugee
Law, International Criminal Law and so on. It is not in this very broad sense that “International humanitarian
law” is conceived in this course. It is understood in its classical meaning as referring to that body of
international law which aims at regulating armed conflicts.

There are different expressions used to designate that body of law. The “Law of War” or “Laws of War” is the
oldest expression which is still used today. However, the “Law of War” is not the most suitable expression for
the subject of this course. “War” is an old concept in international law. Before the Second World War, a state
of war was normally created, in legal terms, by a declaration of war. A declaration of war was simply a
statement made by a state that expressed its intention to wage war against another state. It was this formal
declaration of war that triggered the application of the “Law of War” between the belligerent states.

After the Second World War, the application of the law regulating the conduct of belligerents ceased to be
dependent upon a declaration of war, which is a rather subjective act on the part of the state. Instead,
international humanitarian law applies whenever an armed conflict occurs, and an armed conflict is a material
situation. This test is not only more objective but it covers a wider range of incidents of armed violence, both

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between and within states. Nevertheless, when the expression “Law of war” is still used today, particularly in
the media, you should understand it as synonymous to international humanitarian law.

The expression jus in bello is also used today to designate international humanitarian law. Given that this
expression simply means the “law in war” in Latin, you would be forgiven for thinking that it is doubly out of
date! However, jus in bello remains a useful term of art because it is often used in contradistinction to the
term jus ad bellum. As we will see in detail later in the course, jus ad bellum is a set of international legal rules
that regulate the right to resort to force between states. If we use the old concept of war, we can say that the
jus ad bellum regulates whether a declaration of war was in accordance with international law, while the jus
in bello regulates the methods of pursuing the war once it has begun. It is important to remember that this
course will be limited to the jus in bello and does not cover the jus ad bellum.

After the Second World War, when the material and objective notion of armed conflict replaced the formal
and subjective notion of war, another expression has been used: the Law of Armed Conflict, or its
abbreviations: LOAC.

That expression may be found in treaties in that field and is often used in legal scholarship. A competing
expression, “International Humanitarian Law”, also emerged at that time. Initially, it was only used to qualify
that part of the law of armed conflict that deals with the protection of persons in the hands of the enemy. In
current usage, international humanitarian law is used to cover the whole body of rules regulating all aspects
of armed conflicts, including those rules that regulate the conduct of hostilities.

The use of the term “international humanitarian law” has been criticized as it is argued that not all rules
regulating armed conflict are properly humanitarian. For example, the law of neutrality, which, we will see,
regulates the conduct between belligerent and non-belligerent states, has been designed to protect
international trade, rather than people. However, the expression “international humanitarian law” has the
advantage that it emphasizes the evolution of that law, which has increasingly focused on the protection of
individuals at the expenses of military necessity.

To be in line with this current trend and also with the current scholarship, we will mainly use that expression
in our course and in particular its abbreviation “IHL”. However, keep in mind that it is synonymous with other
expressions such as the law of armed conflict, jus in bello and the laws of war, and designate the same rules
applicable in armed conflict.

1.2.3 Overview of the content and structure of the course

Armed conflicts have been an ever-present threat to human society. Armed conflicts still occur today in many
parts of the worlds: in particular regions such as the Levant, Africa and Asia are badly affected.

Moreover, we are witnessing the rise of new forms of armed conflict. Notably the emergence of the so-called
Islamic State has seen the rise of ad-hoc and deliberate attacks against civilians, far removed from the
battlefield. Almost every day, the media reports on actions taken in armed conflict and of the horrific
consequences of those actions.

We are sure that many of you have already noticed reports of violations of international humanitarian law or
the commission of war crimes. If you have, it is natural to wonder what this law is.

 Where to find its rules and who is bound by it? What do we mean by armed conflicts?

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 What is its exact content and what are the legal consequences stemming from its violations?

Let's briefly address these questions in the next video, which will provide you with the general content and
structure of the course.

1.3 Law and armed conflicts

1.3.1 Introduction

In this section, you are invited to consider some foundational, and somewhat philosophical, questions
regarding international humanitarian law.Don’t worry! The problems are simple to understand but defy easy
answers.
1.3.2 The paradox of law in conflict

What do you think?

Do you think that it is possible for law to operate during warfare?

Please watch the extract of the film "The Bridge on the River Kwai", which suggests that international law is
not adapted to regulate war between two belligerent states.

“The Humanizing of War! You might as well talk of the humanizing of Hell…As if war could be civilized! If I’m
in command when war breaks out I shall issue my order – ‘The essence of war is violence. Moderation in war
is imbecility. Hit first, hit hard, and hit everywhere”.

Another concern raised by the idea of regulating war is that such regulation risks legitimizing it.
The International Law Commission, a body in charged of codifying international law since 1947, has also
expressed its concern about studying the law of war at the begining of its work. Please consider the following
extract.

"The Commission considered whether the laws of war should be selected as a topic for codification. It was
suggested that, war having been outlawed, the regulation of its conduct had ceased to be relevant. On the
other hand, the opinion was expressed that, although the term "laws of war" ought to be discarded, a study
of the rules governing the use of armed force –legitimate or illegitimate– might be useful. The punishment of
war crimes, in accordance with the principles of the Charter and Judgment of the Nuremberg Tribunal, would
necessitate a clear definition of those crimes and, consequently, the establishment of rules which would
provide for the case where armed force was used in a criminal manner. The majority of the Commission
declared itself opposed to the study of the problem at the present stage. It was considered that if the
Commission, at the very beginning of its work, were to undertake this study, public opinion might interpret its
action as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for
maintaining peace.”

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Do you also share the views that there is a risk that, by regulating armed conflict through law, we make it more
likely that war will break out? Is it possible for violence in war to be subject to any regulation?

A twofold paradox

The first and fundamental question that IHL provokes is whether it is absurd to regulate warfare with law. In
this respect, IHL involves a twofold paradox.

The first paradox is that, by regulating and humanizing war, such law would make it more acceptable and
legitimate. In particular, this would run counter the outlawing of war and undermine the efforts made by
international organizations, such as the United Nations, to prevent armed conflicts. Yet, this does not seem
well-founded. We may first object that this is not the role of IHL to limit or temper resort to war. Its aim is only
to regulate war when it has broken in order to alleviate the suffering of victims of war. It seems fallacious to
think that it may have any impact on the occurrence of wars. It cannot increase resort to wars and, conversely,
its non-existence would not reduce such unhappy phenomenon. The application of IHL does not imply that
war is legal or that collective security mechanisms are themselves inefficient. It is based on the mere reality
that wars still occur today and that it would be disastrous to leave such phenomenon unregulated, even when
it occurs in violation of international law, when legal or political mechanisms for avoiding it have failed.

The second apparent paradox is that IHL regulates battlefield situations which seem to be the negation of the
law. In other words, “Law” and “Armed Conflicts” would be two incompatible terms. This is what is meant by
the famous Latin formula attributed to Cicerone: “inter armas silent leges” or, in English, “Laws are silent
among [those who use] weapons”. However, this does not seem true either. War, even if it is one of the
worst situations, is still a social reality which, like any other social reality, is subject to regulations. And
constraints may indeed be considered in relation to waging war. War is not an end in itself. It is a goal-oriented
activity so that measures of violence which exceed what is necessary for achieving this goal may be seen as
superfluous and may therefore be proscribed. In addition, decisions regarding the operations conducted in
war are increasingly taken by professionals, removed from the tumult of the battlefield. Moreover,
belligerents have a common interest in limiting the scope of violence. In doing so, they protect their soldiers
and civilians. They agree on not conducting unnecessary acts of violence, so they can avoid wasting resources
and retaliations. They also increase the possibility of post-war reconciliations, as such reconciliations are
easier when the hostilities were not unrestrained.

1.3.3 Is International Humanitarian Law really law?

Is IHL really law ?

Is IHL really Law? The legal nature of the rules regulating armed conflicts has sometimes been called into
question for several reasons. The main one is that it is claimed that it is frequently violated. This does not seem
to be a good reason. As a matter of fact, States and armed groups often go to considerable lengths to adhere
to rules of IHL. Many states take care to follow the legal instructions given by their legal advisers on the subject
when conducting military operations. This will become clear as you listen to the interview with a legal adviser

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to the Belgian forces, Lieutenant-Colonel Christian de Cock, at the end of chapter 5 of this course. Sometimes,
states even adopt stricter rules. This is for example the case of Belgium with respect to airstrikes against ISIL
in Syria and Iraq. Belgian pilots are prohibited to cause any collateral damage to civilians, even when such
damage would be authorized under IHL.

IHL is no more frequently violated than a number of other legal norms, whose legal nature is uncontested. The
problem is that in the field of armed conflicts a single violation may have huge and disastrous consequences
and often attracts media attention. Just think of the attacks directed against medical units in recent armed
conflicts. This may give the false impression that IHL is ineffective.

In addition, as a matter of principle, regular violations of a rule do not deprive it of its legal character. Take the
example of national rules regulating the speed limit. They do not cease to be legal norms because they are
frequently violated. More fundamentally, any legal norm implies that it may be violated, at least to some
extent. The aim of a legal norm is to incite its addresses to adopt the behavior that it prescribes. It would be
useless for a legal norm to prescribe a behavior which is always adopted and followed.

Another criticism against the legal nature of IHL is that there is no sanction when it is violated. Again, this does
not seem to be true. It is true that there is no judicial mechanism specific to IHL to sanction violations of that
law; but there are many other ways through which such violations are legally sanctioned, including through
international criminal tribunals, the United Nations Security Council or the human right bodies. In addition,
there are not only legal sanctions. International disapproval by the world opinion may also be a form of
sanction, putting pressure on the states to respect IHL.

So why is it that we consider IHL law? The simple answer is that states accept it as such. When states are
accused of violating IHL, like international law in general, they will not argue that the violated rule, for instance
the rule against targeting civilians, is not of legal nature. Most often, they will deny the facts by saying “we did
not do what you said”; they will invoke exceptions to the prohibition or give a particular legal interpretation
of their conduct and state that it does not fall into the scope of the prohibition.

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1.4 History of International Humanitarian Law

1.4.1 Introduction

This section aims to provide you with a succinct overview of the history of IHL.

Throughout history, there have been various codes or recognised practices relating to the execution of
warfare. However, it is generally admitted that the modern law of armed conflict only emerged in the second
half of the nineteen century. This era saw the arrival of conscripted armies armed with advanced weaponry
forged by industrialized societies. With respect to the development of the law, the late 19 th century saw the
rise of the treaty as a means of creating new obligations.

Hitherto the “Laws of War” were largely customary, thus were vague and the creation of new rules was
difficult. Embodiment in treaties meant that constraints on the use of force in war were applicable to all the
states having ratified the treaty and for all the conflicts in which they were and would be involved in. This
contrasts with the limited scope of the constraints that had previously existed

These modern developments may be linked to different events. We will examine some of them, which are of
particular significance:

 the codification projects regarding IHL on land (Unit 1.4.4)

 and the creation of the Red Cross (Unit 1.4.5).

We will then turn to contemporary IHL and describe the main IHL treaties which are still applicable today (Unit
1.4.6).

Advanced level part

For those who follow the advanced level parts, we will also briefly consider the pre-modern roots of IHL as
usages and customs pertaining to warfare ( unit 1.4.2) and another significant event to which the modern
IHL developments may be linked: the treaty regime created to regulate the law of the sea ( unit 1.4.3).

1.4.2 Pre-modern developments

Advanced level part

Almost all peoples, through time accross the planet, have accepted certain restrictions regarding acceptable
forms of warfare. Whether in China or Rome, ancient civilisations have, at least for certain
periods, recognised such restrictions. It is difficult to argue with any real conviction that modern IHL is derived

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from any one of these normative systems. Indeed it is doubtful that, by todays standards, any of these systems
of rules could be described as law. For instance, both the Greeks and Romans believed that violations of the
laws of war would be sanctioned by the gods.

Another potential genesis of contemporary IHL is the medieval codes of chivalry. While the codes of chivalry
did regulate certain aspects of warfare, they were in fact codes of etiquette for nobles. They only regulated
warfare because war was seen as the proper pursuit of medieval lords. In reality, the rules which applied to
armed conflicts only benefitted nobles themselves.

Other examples could be cited. Please read in that regard the article by C. Greenwood on that subject.

These pre-modern instances of rules regulating warfare have led to what we, today, call IHL. By contrast, as
you will see in the next three sections, developments in the 19th century set the scene for the emergence
of contemporary IHL.

1.4.3 The development of a legal regime regulating warfare at sea

Advanced level part

The first “modern” developments of IHL arose from the expansion of maritime international trade and the
corresponding need for an enhanced protection for commercial vessels. This led to the adoption of a treaty
called the 1856 Declaration of Paris, signed at the end of the Crimean War (1853-1856). The Declaration has
been argued to be the first time states used a treaty to create new rules on the laws of war. Before then
treaties had been used to cement alliances or bring wars to an end, but such agreements were concluded
without purporting to change the law itself. Certainly the Declaration of Paris was the first general IHL treaty
and was centered on the maritime law of neutrality.

The Declaration of Paris regulated three main issues.

1. First, it abolished privateering. Privateering was a former usage of war according to which private vessels
were commissioned by a belligerent government to raid on enemy shipping, including merchant vessels.
Privateering had flourished during the 16th century but remained a persistent threat. Such practice has led to
serious abuses; privateers were motivated by financial gain – under their commissions they were entitled to
keep a proportion of the “prizes” they captured. Therefore, privateers frequently failed to respect the laws of
war and made no distinction between friendly and enemy shipping.

2. The second issue regulated by the Declaration of Paris was the seizure of neutral goods on enemy vessels or
enemy goods on neutral vessels. Such seizures were prohibited unless the goods were contraband of war; in
other words materials that were necessary or at least useful in the prosecution of the war. Merchant goods
were therefore protected against any seizure by the belligerents.

3. The third issue concerns maritime blockades. The Declaration of Paris provides in that respect that maritime
blockades are binding only if they are effective “that is to say, maintained by a really sufficient force to prevent
access to the coast of the enemy”. Blockades have often been used in the past to cut off maritime

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communication and supply. The Declaration intends to put an end to the past practice in which belligerent
resorted to a blockade in order to control international maritime commerce even when they were not able to
enforce the blockade. The ban on ineffective blockades was, again, symptomatic of the bias towards the
protection of trade rather than seeking to mitigate the effects of war on civilians.

The maritime law of neutrality and, more generally, the Law of neutrality were both further developed at the
international conference held at The Hague in 1907. Several treaties, which are still in force today, have been
adopted on that subject at that conference. This conference was part of a second round of a cycle of three
conferences convened by Russian Tsar Nicholas II: the first conference was held in 1899; the second in 1907
and the third one did not take place since it had been planned in 1914, when WWI outbreaks.

The Law of neutrality is mainly based on the liberty of non-belligerent states to participate or not in an armed
conflict and their right not to be adversely affected by the conflict if they chose not to participate. However,
today the discretionary right to participate in armed conflicts has been significantly curtailed. This is mainly
due to the existence of the UN collective security system, which may require states to take a side in an armed
conflict or forbid trade with one or more of the belligerents. More generally, the importance of neutrality has
been undermined by the prohibition on the use of force under the UN Charter. The cumulative effect of these
more recent developments means that neutrality is less significant than it was in the past, although it is not
obsolete. We will not be addressing the law of neutrality in depth during this course, but you may read an
article written by Michael Bothe on that subject ("The Law of Neutrality", in D. Fleck (ed.), The Handbook of
International Humanitarian Law, 2nd ed, 2008, §§1101-1155).

1.4.4 The Lieber Code and early attempts at codification

The Lieber Code

One of the most important developments of IHL occurred in the context of the American Civil War. During that
war, Francis Lieber, a professor at Columbia University in New York, was asked by the general-in-chief of the
Union forces, General Halleck, to compile all the existing customary laws of war. Besides having served as a
soldier into two conflicts as a young man, Francis Lieber had gone onto become a well-known specialist in the
law of war. Lieber took advantage of the interest expressed by General Halleck and suggested that a code be
created. A code would simplify the complex range of customary rules making it a more useful guide for the
officers of the Union forces during the Civil War. The code, completed in 1863, contained 157 articles and
covered many areas. It was the first attempt to codify the laws and customs of war.

The Lieber Code has had a great influence. In particular, it formed the basis of a draft convention adopted at
an international conference held in Brussels in 1874. Although that convention was not ratified by the states,
and so never became legally binding, its content was closely reflected in the 1880 Oxford Manual on the laws
of land warfare, prepared by the then newly-formed Institute of International Law. The Oxford manual was,
however, only the recommendations of a professional body and as such the text did not constitute a source
of law. Nevertheless, the broad similarities between the three documents were clear evidence of a growing
consensus regarding the content of the customary laws of armed conflict. This consensus was finally
encompassed within legally binding international treaties during the Hague conferences of 1899 and 1907. A
convention on the laws and customs of war was indeed adopted in 1899 and was revised in 1907. That revised
convention remains valid law toda. Thus the ongoing relevance of that Convention demonstrates just how
influential the Lieber Code has been on contemporary IHL.

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1.4.5 The creation of the Red Cross

The birth of the Red Cross

The final major development that led to the emergence of a modern law of armed conflict is also related to a
specific armed conflict, the battle of Solferino in June 1859, where France was helping Sardinian forces to push
back Austria from the North of Italy. Henri Dunant, a young Swiss businessman who was seeking a meeting
with Napoleon III regarding business opportunities in French colonies, caught up with the French royal
entourage in the immediate aftermath of the battle. Dunant was shocked and dismayed by the thousands of
wounded soldiers who were left dying on the ground without water, food or medical care. The number of the
medical military units on both sides was insignificant and those units that existed were quickly overwhelmed.
Dunant therefore organized a group of volunteers to provide assistance to these soldiers.

In 1862, back in Geneva, Dunant published A memory of Solferino in which he described what he saw and
made some suggestions, including the establishment, in time of peace, of relief societies in each country which
would provide care for the wounded in time of war. This book had a great impact all over Europe. In
Switzerland it was received positively by the Geneva Society for Public Welfare. The Society’s President, jurist
Gustave Moynier, decided to create, in 1863, a Commission in order to formulate plans for the implementation
of Dunant’s ideas. This commission, composed of Gustave Moynier, Henri Dunant and three other important
Swiss men, was named the “International Committee for the relief of wounded military”. It is the ancestor of
the present-day “International Committee of the Red Cross”, which is normally referred to as the ICRC. Some
months after its creation, the International Committee managed to gather together a significant number of
representatives of European governments. Collectively, those present at the meeting resolved to implement
a number of proposals to ameliorate the condition of those wounded in conflicts. These proposals included
Dunant’s proposition regarding the creation of national committees for the relief of wounded military: the
recognition of the central role of the Geneva Committee and the adoption of the red-cross sign as the
distinctive sign of the medical personnel.

Under the pressure of the International Committee, the Swiss Government convened an international
conference to adopt a binding treaty in place of the political commitments expressed in 1863. The Conference
was a success and led to the adoption of the 1864 Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field. Contrary to the 1899 and 1907 Hague Conventions on the laws and customs
of war, the 1864 Convention was only focused on the protection of persons and not on the conduct of
hostilities. Because of this emphasis, the 1864 Convention is widely regarded as the first humanitarian
convention on the laws of armed conflict. The 1864 Convention has been subject to a number of
developments. For instance, in 1899, its provisions were adapted to regulate armed conflict at sea according
to similar principles. On land, the Convention was amended in 1906, 1929 and finally in 1949.

1.4.6 1945 to the present day

The current core of IHL treaties

The final part of our history of IHL focuses on the adoption of the IHL treaties which are still in force today. In
other words, we will briefly look into the origins of many of the rules that we will be studying for the rest of
this course. As we have already seen, several IHL treaties have been adopted before the First World War. We

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may notice in that respect that the 1907 Hague Convention on the laws and customs of war, including its
annexed Regulations, is not only an important landmark in the development of IHL but is also binding law
today. The 1907 Convention regulates many aspects of the conduct of hostilities and occupation in
contemporary conflicts.

Another major component of the corpus of contemporary IHL treaties are the four Geneva Conventions
adopted in 1949, just after the Second World War. The “Geneva Conventions” of 1949 were adopted in order
to prevent the abuses seen during that war. The “Geneva Conventions” contain hundreds of provisions, all
dealing with the protection of persons rather than the conduct of hostilities. The two first conventions concern
the protection of wounded and sick in armed forces in the field and at sea, respectively. They result from the
revisions of former conventions on that subject. The third one deals with the protection of captured
combatants, who are entitled to the status of prisoner of war. This is a fundamentally revised version of the
1929 Geneva Convention. Only the fourth Geneva Convention adopted in 1949 introduced a wholly new
category of “protected persons;” namely civilians. The development of new forms of weaponry and the
embrace of a “total war” philosophy meant that the Second World War affected a far higher proportion of
ordinary civilians than conflicts in the recent past. The vast majority of the four Geneva Conventions apply
only to international armed conflicts. Only one provision is applicable to non-international armed conflicts.
This is Article 3 and, as it is written in the same way in all the four conventions, it is generally called “Common
Article 3.” Common Article 3 to the four Geneva Conventions is a rudimentary provision and grants only the
most basic protection.

Despite the radical overhaul of the “humanitarian” aspects of the law of armed conflict in the wake of the
Second World War, it quickly became clear that this body of rules – focused almost entirely on international
armed conflicts – was unfit for purpose. This was because by the 1970s it was clear that classical international
armed conflicts were becoming quite rare. Many post-WWII conflicts were colonial in origin, where peoples
subjected to foreign rule fought for their liberation. These wars of national liberation raised significant
questions for IHL, for example the status of freedom fighters and the qualification of their struggle against
colonial regimes. Questions such as these were addressed through the creation of a first Additional Protocol
to the four Geneva Conventions in 1977. However, that Additional Protocol was mainly intended to
complement and update both the 1907 Hague Convention and the four 1949 Geneva Conventions. In other
words, unlike previous conventions, it sought to regulate both the conduct of hostilities and the protection of
persons in the hands of the enemy.

The increasing number of wars that were purely internal in nature, often termed “civil wars”, also undermined
the prominence of the traditional, international armed conflict. The previous regulations made little provision
for internal armed conflicts and so there was an urgent need for additional protection. This led to the adoption,
also in 1977, of a second Additional Protocol to the four Geneva Conventions. The provisions of this Protocol
also deal with both the protection of persons (and therefore complement Common Article 3) and the conduct
of hostilities. The initial draft of Protocol II, prepared by the ICRC, contained hundreds of provisions. However,
it was significantly shortened during the negotiations between states because governments were reluctant to
encourage and/or legitimize resistance to their rule.

Lastly, a number of specific conventions have also been adopted on a diverse range of subjects. The subject
matter ranges from conventions on the protection of cultural property to treaties that prohibit certain
weapons. Moreover, texts have been adopted in order for IHL to apply to other actors than States, in particular
the United Nations, while non-state actors have agreed to abide to the obligations of IHL through special
agreements or declarations. However, when we talk generally about the core of IHL treaty law applicable

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today, we are often referring to the 1907 Hague Convention on the Laws and Customs of War, the four 1949
Geneva Conventions and the two 1977 Additional Protocols to those Conventions.

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1.5 Jus ad bellum VS Jus in bello

1.5.1 Introduction

In this section, we will examine the interactions between the jus ad bellum and the jus in bello. But what's jus
ad bellum?

1. Jus ad bellum

Jus ad bellum is a branch of international law which refers to the regulation of the lawful grounds for the use
of force between states. Jus ad bellum regulates interstate resort to force.

It is distinct from jus in bello, as the latter refers to the laws which regulate the hostilities once they
have broken.

Under contemporary jus ad bellum, there is a general prohibition on the use of force (Art. 2, §4 of the UN
Charter). However, there are three undisputable situations in which use of force is allowed:

 the first is self-defense, when a state – either individually or collectively – resorts to force in response to an
armed attack. (Art. 51 of the UN Charter)
 the second arises when the UN Security Council authorizes states to use force in response to “any threat to
the peace, breach of the peace, or act of aggression." (Chapter VII of the UN Charter)

 the third is when a state consents another state's use force within its territory.

This is in light of those rules that many military interventions have been condemned by states or lawyers,
including, for example, the US intervention in Iraq in 2003.

We must also add that certain lawyers and states have argued for other situations in which force would be
allowed under international law, such as the right to humanitarian intervention, that is the right to use force
for humanitarian purpose on the territory of another state even without any authorization of the UN Security
Council and without the consent of that state. However, as we will see in the video of Unit 1.5.5, such position
is very controversial and does not seem to be established under the current state of international law.

That being said, the purpose of this section is not to examine jus ad bellum in detail. The object is to examine
the relationships between the two bodies of law.

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1.6 International Human Rights Law VS International Humanitarian Law

1.6.1 Introduction

The final section of Chapter 1 is dedicated to examining the relationship between international human rights
law (IHRL) and IHL.

IHRL is another branch of international law dealing with the protection of individuals. The main body of
international human rights law was developed after WWII at both the international and regional levels.

Several treaties have been adopted at the international level, including the two most significant international
covenants: the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights (both adopted in 1966). Moreover, a semi-judicial body, the Human
Rights Committee, has been set up in order to guarantee the performance of those Covenants. The Human
Rights Committee’s competences include the ability to hear individual complaints and to make general
observations on the interpretation of the Covenants. Other treaties have been adopted at the international
level on specific human rights. One of the most widely ratified of such conventions is the Convention on the
Rights of the Child.

Unlike IHL, human rights have also been developed at the regional level. Regional protection for IHRL first
appeared in Europe, with the adoption of the European Convention on Human Rights (1950). Later, regional
instruments were created in the Americas (American Convention on Human Rights (1969)) and Africa (African
Charter on Human and Peoples' Rights (1981)). What characterizes IHRL at a regional level is that strong
judicial mechanisms tasked with guaranteeing respect for human rights have been created in each of the
three regions: the European Court of Human Rights, the Inter-American Court of Human Rights and the African
Court on Human and People’s Rights. They have been set up in addition to political bodies, such as the Inter-
American Commission on Human Rights and the African Commission of Human and People’s Rights. Other
treaties, prepared by the political bodies, have also been adopted on specific human rights at those regional
levels.

IHRL was initially only intended to apply during times of peace as a means for regulating and limiting the
sovereign powers of a state vis-à-vis individuals under its jurisdiction. However, it is now generally admitted
that they are also applicable in wartime and extra-territorially. The International Conference on Human Rights
convened in Teheran in 1968 for the twentieth anniversary of the Declaration of Human Rights was a turning
point with respect to the application of IHRL to armed conflicts. During the Tehran Conference, several
resolutions were adopted, including resolutions I and XXII entitled “Respect for and Implementation of Human
Rights in Occupied Territories” and “Human Rights in Armed Conflict”, respectively.

For the rest of this sub-section, we will not study in detail the IHRL norms and bodies. There is a MOOC created
by the University of Louvain on International Human Rights Law. Instead of repeating this material, we will
focus on the challenges that may emerge from the interactions between that law and IHL.
 This raises a first issue to be addressed in this sub-section: the commonalities and differences between
IHRL and IHL. (Unit 1.6.3)

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 After examining that issue, we will then study the potential conflicts between human rights standards and IHL
and how these conflicts may be resolved. We will start by considering how human rights standards are flexible
and can adjust to accommodate IHL at the world level (Unit 1.6.4) and regional levels, including the Inter-
American and African levels (Unit 1.6.5) as well as the European level (Unit 1.6.6.)

 We will then also consider how, in turn, these human rights standards may influence the substance of IHL.
(Unit 1.6.7)

 Finally, we address one of the most significant controversial issues discussed today in relation to the
application of human rights in armed conflict: the use of lethal force. (Unit 1.6.8)

Advanced level parts

For those who follow the advanced level parts, we will also examine potential legal obstacles to the
application of IHRL in armed conflict ( Unit 1.6.2) before addressing the commonalities and differences
between IHRL and IHL.

We will also developed in more details the interactions between IHRL and IHL at the Inter-American and
African levels (see some developements in Unit 1.6.5).

We will finally examine an additional issue discussed today in relation to the application of IHRL in armed
conflicts: the application of human rights to armed groups. ( Unit 1.6.9).

1.6.3 Similarities and differences

Both IHRL and IHL are branches of International Law, where the object is the protection of individuals.

There are many similarities between the two branches of law, but also significant differences.

We will examine those similarties and differences from the gardens of the Palace of Nations, where the UN
Human Rights Council and Human Rights Committees have their meetings.

Similar but different

Human rights law and IHL share some obvious common features. They pursue the same general objective: to
protect human beings and human dignity. This object means that they both have some distinct features from
the perspective of the law of treaties, where obligations are usually reciprocal. For instance, a consequence of
the non-reciprocity of IHL conventions is that a violation of an IHL convention by one state does not give its
enemy a right to violate the same convention, as would be normally the case in, for example, a trade treaty.
We will be looking at this issue in greater depth when we come to consider the IHL sources in the next chapter.

More generally, the content of both legal regimes is often similar. Take, for example, the basic protection
afforded to non-combatants under common Article 3 to the four Geneva Conventions. As we will see in detail
later, common Article 3 prohibits murder, mutilation, torture, taking of hostages, cruel and degrading
treatment as well as summary executions. Each of these acts is also prohibited under human rights law.
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That having been said, the differences between human rights law and IHL are far greater than their similarities.
Their origin is different. As we know, modern IHL emerged in the second half of the nineteen century and its
evolution is closely linked to the development of the International Committee of the Red Cross. The
Committee is strictly neutral. By contrast, modern human rights law developed after WWII under the influence
of the United Nations, a political body.

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On a more technical level, human rights law and IHL have a different scope of application. In terms of whom
they apply to, IHL provides individuals with different kind of protection depending on the category to which
they belong. For example there are specific rules for sick and wounded people, prisoners of war and civilian
or civilian population. Human rights law does not make any equivalent distinctions. It protects anybody
regardless of his or her status.

There is another significant difference. As we will show in detail later, IHL binds not only states but also non-
state actors, particularly armed groups. By contrast, the application of human rights law to non-state actors is
very controversial. The majority view is that it does not apply to non-state actors, especially to armed groups.

There are also differences in where the law applies. IHL applies in any armed conflict regardless of where they
take place, while human rights law only applies to persons who are under the jurisdiction or control of the
state in question.

Another significant difference is the fact that the specific rules of IHL that apply to a particular conflict will
depend on the nature of that conflict. As we have mentioned, the whole body of IHL applies in an international
armed conflict, while only some rules apply in non-international armed conflicts. There is no such distinction
under human rights law, except that states may derogate to some human rights when their survival is at stake.

The final, and one of the most important, differences concerns the existence of international bodies charged
with interpreting or applying the legal rules. Under IHL, there is no judicial or political body that is specifically
in charge of monitoring the application of IHL and sanctioning violations. It is true that international criminal
tribunals, such as the International Criminal Court, are competent to try individuals for serious violations of
IHL (and therefore may sanction those violations); but those jurisdictions are not specific to IHL and extend
into areas not covered by IHL. International criminal tribunals do not judge states and do not sanction all IHL
violations but a set of specific, serious violations referred to as “war crimes.” It is also true, as we will see that
later, that some specific mechanisms for implementing IHL exist, such as the International Committee of the
Red Cross. However, those mechanisms are not judicial mechanisms and are not designed to sanction IHL
violations. By contrast, there are several specific political and judicial bodies that have been established in
order to interpret, apply and develop human rights law.

The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed
conflict is one of the rare IHRL treaties which contains a provision devoted to armed groups. Article 4(1)
provides that

“armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit
or use in hostilities persons under the age of 18 years.”

However, the verb “should” rather than “must” was used because states were reluctant to ascribe human
rights obligations to armed groups. This debate is illustrative as to how controversial the idea of granting
armed groups a status under IHRL.

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