An Introduction to International Humanitarian Law, focused on International Criminal Law

1. INTERNATIONAL HUMANITARIAN
LAW (IHL)
Bhagya Wickrmasinghe
LL B(Hons) (Colombo), LL M (Colombo)
Attorney-at-Law
Lecturer - Department of Law
KDU

2. OUTLINE
• Introduction to the main areas
• Interlinkages
• Sources of IHL and ICL
• Main concepts and the connectedness of IHL
to International Criminal Law
• Application and concepts of IHL

3. OBJECTIVES
• To analyse the main concepts relating to IHL
and ICL
• To analyse the interconnectedness of the
concepts relating to IHL and ICL
• To appreciate the conceptual basis and the
foundational principles relating to IHL and
how they are implemented through the ICL
and the ICC

4. • http://oneislandtwonationsblogspotcom.type
pad.com/blog/2015/09/congolese-rebel-
bosco-ntaganda-faces-war-crime-charges.html

5. INTER-LINKAGES
Public
International Law
PIL
International
Human Rights
IHR
International
Humanitarian Law
IHL
International
Criminal Law
ICL

6. WHAT IS ICL
• The principle that individuals are and can be held
criminally accountable for violations of the laws
of war dates back to many years.
• The idea of individual criminal responsibility for
serious breaches of international law gained
ground after World War II and the Nuremberg
and Tokyo trials, set up to judge those German
and Japanese military leaders accused of serious
crimes during the war.

7. WHAT IS IHL
• IHL has developed separately from International
human rights law.
• Also called the law of armed conflict or the laws
of war –
Regulates the conduct of warfare. Most of the
applicable rules are to be found in the four 1949
Geneva Conventions and their two 1977
Additional Protocols.

8. IHR-IHL-ICL
• IHL is one of the oldest branches of Public
International Law
Purpose of IHL
• Regulates the conduct of parties to a conflict
(hostilities) and the protection of categories of
persons/civilians and civilian objects.
• ICL- is a blend of legal principles with different
nature, goals, content, methods, subjects – and
provides for individual responsibility for serious
crimes of international concern.

9. HISTORY AND EMERGENCE OF IHL
• War has always been regulated.
Medieval Crusades
19th century and the regulation
based on unilateral decisions made
by nations or parties in conflict
Modern law on armed conflict -
Hague regulations and the Geneva
Regulations

10. • Geneva Convention 1949
• Additional Protocols of 1977
Main sources of IHL
• 1954 Convention, Protection of Cultural
Property in the Event of Armed Conflict
• 1972 Biological Weapons Convention
• 1980 Conventional Weapons Convention
and Its five protocols
• 1993 chemical Weapons
• 1997 Ottawa Convention on anti-
personal mines
• 2000 Optional Protocol to the Convention
on the Rights of the Child on the
Involvement of Children in armed
conflict
Agreements on use of
weapons and military
tactics and protect certain
categories of people and
goods

11. HISTORY AND EMERGENCE OF IHL
• -In the medieval Crusades applied to only knights and
crusaders
• -Ancient China
• -Simon Bolivar
• Andres Bello
• 19th century – sporadic and unsystematic protection of
civilian population and victims.
• 1863 : Abraham Lincoln
• Battle of Solferino 1859
• 1907 : Modern law on armed conflicts began to develop
around two intimately related traditions: The Hague
Regulations, which regulate the use of force and hostilities;
and the Geneva Regulations, which seek to alleviate
combatants’ suffering and to protect civil populations
affected by conflict.

12. BASIC PRINCIPLE OF INTERNATIONAL
CRIMINAL LAW
• Relatively new legal discipline composed of legal
regulation that derive from international law and
domestic criminal law.
• The complementary between international and
domestic criminal systems makes legal discipline in its
character, sources, methods, themes and contents.
• International criminal law seeks a balance between
national sovereignty and the need to regulate the
multifaceted relations and interests among States and
the interests of the international community.

13. BASIC PRINCIPLE OF INTERNATIONAL CRIMINAL LAW
• It is the branch of law that gives force to the
prosecution of violations of international law
of human rights and IHL.
• The three branches such as IHR, IHL and ICL
are interconnected and mutually reinforce
each other.

14. SOURCES
IHL - Art. 38(1), ICJ
Statutes
Convention
Customs
Courts
Article &
Publications
ICL
International
conventions
Customary law
General
principles
Jurisprudence of
international
tribunals

15. KEY LEGAL INSTRUMENTS ON IHL
1864 GenevaConvention
1868 St. Petersburg
Declaration
1899 & 1907 Hague
Conventions
1929 Geneva
Convention
1949 Geneva
Convention
Additional Protocols to
the Geneva Conventions
• AP I
• AP II
• AP III

16. APPLICATION OF INTERNATIONAL
CRIMINAL LAW
• Requirements
1. Ratione personae
2. Ratione materiae
3. The responsibility arising from the criminal act established
by international and
4. Rules of procedure of international law and domestic law
that incorporate a minimum of rights of the accused.
5. The application of punishment involving both international
and domestic mechanism
6. Completion of punishment corresponds national legal
systems
7. The types of cooperation is same for international and
national crimes

17. REGULATION OF ICL
• More than 270 international treaties regulate
international criminal law.
Rome Statutes 1998
The statutes of the
ad-hoc tribunals for
Yugolavia 1993 &
Rwanda 1994
Genocide Convention
1948
Convention Against
Torture
Tokyo Proclamations
for establishment of
military tribunal in far
east
1946 UNGA
Resolution 95(1)
Doc.A/64/ADD.1 on
Nuremburg Tribunals

18. AAPLICATION INTERNATIONAL
HUMANITARIAN LAW
• International humanitarian law applies only to
armed conflict – NOT to internal tensions or
disturbances such as isolated acts of violence.
The law applies only once a conflict has
begun, and then equally to all sides regardless
of who started the fighting.
• International armed conflicts are those in
which at least two States are involved.

19. INTERNATIONAL ARMED CONFLICT
AND NON ITNERNATIONATIONAL
ARMED CONFLICT
• The legal regulation of international armed conflicts is more
detailed and the protection afforded by the law greater
than is the case with non-international armed conflicts.
Ex : obligation on parties to an international armed conflict
to accord captured combatants the status of prisoner of
war (POW) with the associated rights and obligations. This
prevents the prosecution of a POW for the mere fact of
participation in hostilities. There is no such right to POW
status in the law governing non-international armed
conflicts (although captured fighters are still entitled to
legal protection).

20. BASIS OF IHL
• principle of distinction, which applies in all armed conflicts.
This principle obliges “Parties to a conflict” (i.e. the warring
parties, whether states or non-state armed groups) to target
only military objectives and not the civilian population or
individual civilians or civilian objects (e.g. homes, schools, and
hospitals). Failing to make this distinction in military operations
represents an indiscriminate attack and is a war crime.
• Although it is not possible for parties to a conflict always to
avoid civilian casualties when engaged in military operations,
international humanitarian law also requires that parties to a
conflict take precautions in any attack to minimise civilian
deaths and injuries. Attacks likely to cause deaths or injuries
among the civilian population or damage to civilian objects
which would be "excessive" compared to the expected military
advantage must be cancelled or suspended

21. INTERNATIONAL HUMANITARIAN
LAW COVERS TWO AREAS
• the protection of those who are not, or no
longer, taking part in fighting;
• restrictions on the means of warfare – in
particular weapons – and the methods of
warfare, such as military tactics.

22. • What restrictions are there on weapons and tactics?
International humanitarian law prohibits all means and
methods of warfare which:
– fail to discriminate between those taking part in the fighting and
those, such as civilians, who are not, the purpose being to
protect the civilian population, individual civilians and civilian
property;
– cause superfluous injury or unnecessary suffering;
– cause severe or long-term damage to the environment.
Humanitarian law has therefore banned the use of many
weapons, including exploding bullets, chemical and biological
weapons, blinding laser weapons and anti-personnel mines

23. CONNECTION BETWEEN IHL AND ICL
• IHL and human rights law helped to develop
the ICL
• IHL and HR law also is relevant for the
interpretation and application
• ICL is seen as an alternative when the states
do not abide by their HR obligations.

24. • Human Rights Law and IHL are connected :
ICJ:
• “[T]he protection offered by human rights
conventions does not cease in case of armed
conflict, save through the effect of provisions
for derogation of the kind to be found in
Article 4 of the International Covenant on Civil
and Political Rights”

25. • The laws and customs of war, or international
humanitarian law, were created to protect
citizens during armed conflicts. Under ICL,
many violations of international humanitarian
law are now considered war crimes. However,
the two bodies of law have distinct modes of
interpretation and application, and while
international humanitarian law can be useful
in interpreting ICL, the two should not be
conflated.

26. PROSECUTION OF WAR CRIMINALS
UNDER IHL
• On becoming party to the Geneva Conventions,
States undertake to enact any legislation
necessary to punish persons guilty of grave
breaches of the Conventions. States are also
bound to prosecute in their own courts any
person suspected of having committed a grave
breach of the Conventions, or to hand that
person over for judgment to another State. In
other words, perpetrators of grave breaches, i.e.
war criminals, must be prosecuted at all times
and in all places, and States are responsible for
ensuring that this is done.

27. PROSECUTION OF WAR CRIMINALS UNDER IHL
•
States criminal laws - only to crimes committed on its territory or
by its own nationals.
International humanitarian law - goes further in that it requires
States to seek out and punish any person who has committed a
grave breach, irrespective of his nationality or the place where
the offence was committed. This principle of universal
jurisdiction is essential to guarantee that grave breaches are
effectively repressed.
•
Such prosecutions may be brought either by the national courts
of the different States or by an international authority. In this
connection, the International Criminal Tribunals for the former
Yugoslavia and Rwanda were set up by the UN Security Council
in 1993 and 1994, respectively, to try those accused of war
crimes committed during the conflicts in those countries.

28. CATEGORIES OF INTERNATIONAL
CRIMES
• aggression, genocide, crimes against humanity, war
crimes, crimes against UN personnel; mercenaries,
torture, apartheid, slavery, pirating, airplane hijacking,
illegal acts against the environment, illegal drug
trafficking, illegal pornography trafficking, theft of
radioactive material, possession and use of illegal
arms, illegal human experimentation, illegal acts
against maritime navigation, the destruction and theft
of national treasures, illegal acts against internationally
protected people, mail fraud, the taking of civilian
hostages, illegal acts interfering with submarine cables,
bribing public officials, forgery

29. Core
Crimes
Crimes
Against
Humanity
War
Crimes
Genocide
Aggression

30. WAR CRIMES
• There are no clear definitions of international
crimes, nor is there a legal body that groups
them together as such. In effect, defining these
crimes is a process of diversified codification by
various treaties or by international custom.
• The International Criminal contributes to
international humanitarian law and
international human rights law since gathers
advances in codification and international
custom, systematizes them and defines them in a
single document: the Statute of the Court.

31. • Even after codifying crimes of genocide, certain
difficulties in their determination remain. Crimes
of genocide involve three fundamental elements:
the identification of a group; the intention to
partially or totally destroy the group (mens rea);
and the commission of any of the acts mentioned
in the definition (actus rea). The definition of
“group” does not include political or cultural
groups—these categories were suppressed in the
original version of the Statute of Rome due to
strong opposition from certain sectors. In respect
to mens rea and actus rea, the prosecutor must
establish the criminal intent of the accused; the
ICTR and the ICTY have made important
contributions to this concept.

32. • Karadsic and Mladic the ICTY resolved that
"The degree to which the group was destroyed in whole
or in part is not necessary to conclude that genocide
has occurred. That one of the acts enumerated in the
definition was perpetrated with a specific intent
suffices. (...) The intent which is peculiar to the crime of
genocide need not be clearly expressed. (...) The intent
may be inferred from a certain number of facts such as
the general political doctrine which gave rise to the acts
possibly covered by the definition in Article 4 [of the
Statute], or the repetition of destructive and
discriminatory acts. The intent may also be inferred
from the perpetration of acts which violate, or which
the perpetrators themselves consider to violate, the
very foundation of the group - acts which are not in
themselves covered in the list in Article 4(2) which are
committed as part of the same pattern of conduct."

33. • August 1945, the Allied Powers, meeting in London,
signed the agreement that created the International
Military Tribunal, commonly known as the Nuremberg
court. Article 6 established that the Tribunal would have
jurisdiction to try those accused of crimes against
peace, war crimes, and crimes against humanity.
• Crimes against humanity were understood as “murder,
extermination, enslavement, deportation, and other
inhumane acts committed against any civilian
population, before or during the war, or persecutions
on political, racial or religious grounds in execution of
or in connection with any crime within the jurisdiction
of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.”

34. • In spite of the advances of the Nuremberg
trials, crimes against humanity continued to
be considered as accessories to war crimes.
They were mainly used to protect the
inhabitants of a country from the authorities
of an occupying power and had to have a
nexus with war crimes or crimes against
peace.

35. • Allied Control Council’s adoption of a wider
definition of crimes against humanity was an
important milestone, although the Control Council
only had national jurisdiction in Germany.
The definition marked an advance in the
understanding of these crimes: “Atrocities and
offenses, including but not limited to murder,
extermination, enslavement, deportation,
imprisonment, torture, rape, or other inhumane acts
committed against any civilian population, or
persecution on political, racial or religious grounds
whether or not in violation of the domestic law of
the country where perpetrated.”

36. • Commission of International Law’s 1996 “Draft Code of Crimes
Against the Peace and Security of Mankind”, elaborated at the
request of the General Assembly of the United Nations.
In the Draft Code, crimes against humanity are defined as: “any of the
following acts, when committed in a systematic manner or on a large
scale and instigated or directed by a Government or by any
organization or group: (a) murder; (b) extermination; (c) torture; (d)
enslavement; (e) persecution on political, racial, religious or ethnic
grounds; (f) institutionalized discrimination on racial, ethnic or
religious grounds involving the violation of fundamental human rights
and freedoms and resulting in seriously disadvantaging a part of the
population; (g) arbitrary deportation or forcible transfer of population;
(h) arbitrary imprisonment;(i) forced disappearance of persons;(j)
rape, enforced prostitution and other forms of sexual abuse;(k) other
inhumane acts which severely damage physical or mental integrity,
health or human dignity, such as mutilation and severe bodily harm
(art. 18).”

37. • Ad-hoc Tribunals for Rwanda and Yugoslavia, and the
Statute of the International Criminal Court.
Article 5 of the Statute of the International Criminal
Tribunal for the former Yugoslavia (ICTY) establishes its
competence to try those accused of the following crimes
against the civilian populations in times of armed conflict:
“(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.”

38. • In the Tadic Appeals Chamber judgment, the
ICTY established that demanding proof of
armed conflict restricts the reach of the
customary law concept of crimes against
humanity, since after the Nuremberg trials it is
no longer necessary to establish a nexus
between crimes against humanity and war
crimes or crimes against peace.

39. • The Statute of the International Criminal Court incorporates the
ICTY approach (“…any of the following acts when committed as
part of a widespread or systematic attack directed against
anycivilian population, with knowledge of the attack (art. 7(1))”
and, in addition to the crimes listed by the ICTY and ICRY,
includes: Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law; Rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable
gravity; Persecution against any identifiable group or collectivity
on political, racial, national, ethnic, cultural, religious, gender…or
other grounds that are universally recognized as impermissible
under international law; Enforced disappearance of persons; The
crime of apartheid; Other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or
to mental or physical health (art. 7(1)).

40. • The Statutes of the ICTY and ICTY contemplates crimes
or infractions derived from Article 3 of Protocol II of
the Geneva Conventions.
• The International Criminal Court contemplates
conduct, in the realm of both international and
internal armed conflicts, which can be prosecuted at
an international level. The ICC statute makes special
mention of the character this conduct must have in
order to fall within the Court’s jurisdiction. Article 8(1)
establishes that “The Court shall have jurisdiction in
respect of war crimes in particular when committed as
part of a plan or policy or as part of a large-scale
commission of such crimes.”

41. • The ICC Statute makes reference to the grave breaches
in Article 3 common to the 1949 Geneva Conventions,
and to other grave breaches of laws applicable to non-
international conflicts, within the framework of
international law. The Statute lists the infractions,
specifying that they must be committed against persons
not participating directly in hostilities, including
members of the armed forces who have given up their
arms and those who are out of combat due to illness,
wounds, detention, or any other reason (see Art.
8(2)(c)(i-iv) and (e)( i-xii)). The applicability of the
Statute to internal conflicts is restricted in respect to
situations of disturbances or internal tension, such as
mutinies, isolated and sporadic acts of violence, or
other acts of similar character.

42. • Genocide : In agreement with Article 2 of the Genocide
Convention, “genocide means any of the following acts
committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such: (a)
Killing members of the group; (b) Causing serious
bodily or mental harm to members of the group;(c)
Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in
whole or in part;(d) Imposing measures intended to
prevent births within the group;(e) Forcibly transferring
children of the group to another group.”

43. • Crimes against humanity : There is no single
definition of crimes against humanity, although
they are included in the ICC, ICTY and ICTR
Statutes. Taking the elements common to the
three Statutes, the following definition can be
constructed: - Crimes against humanity must be
committed against a civilian population. - Crimes
against humanity must be committed on a
massive or systematic scale. - Crimes against
humanity must be intentional.

44. • Conduct constituting a crime against humanity includes: murder,
extermination, slavery, deportation, torture, rape, persecution for
political, racial, or religious motives, and other inhumane acts.
• A. Crimes against the laws and customs applicable to armed
conflict These crimes constitute “war crimes”, in relation to the
Hague Conventions governing war and its limits, as well as to the
Geneva Regulations which govern protection of war victims.
• B. Breaches of the Hague Conventions and other regulations of
war The numerous conventions and protocols codifying the laws of
war originate from the 14 Hague Conventions, drafted between
1899 and 1907. These regulations apply to international conflicts
and mainly relate to the type of arms used in conflict, and certain
prohibited arms.
• C. Breaches of the Geneva Conventions The Geneva Conventions
distinguish between grave breaches and other breaches of the
Conventions.

45. • REPORT OF THE SPECIAL RAPPORTEUR ON SYSTEMATIC RAPE, SEXUAL
SLAVERY AND SLAVERLY-LIKE PRACTICES DURING WARTIME.
• Crime: Rape In regards to the requirement of penetration in the
definition of rape, the Special Rapporteur wrote in her final report:
“Although this report retains ‘penetration’ in the definition of rape, it
is clear that the historic focus on the act of penetration largely
derives from a male preoccupation with assuring women's chastity
and ascertaining paternity of children. It is important, nevertheless,
to emphasize that all forms of sexual violence, including but not
limited to rape, must be condemned and prevented (para. 24).”
Crime: Sexual Slavery The Special Rapporteur defines slavery as “the
status or condition of a person over whom any or all of the powers
attaching to the right of ownership are exercised, including sexual
access through rape or other forms of sexual violence… Implicit in
the definition of slavery are notions concerning limitations on
autonomy, freedom of movement and power to decide matters
relating to one's sexual activity (paras. 27 and 29).

46. PIL
IHL
ICL

47. DISTICTION BTWEEN IHL AND ICL
• Not all violation of international humanitarian law constitute war
crimes and not all IHL treaties criminalize violations.
• However certain violations of IHL could be categorized as crimes
though customary law.
• ICL – individual criminal responsibility for violation of IL.
• IHL focus on actions and obligations of states and government or
parties to a conflict.

48. References
• ICRC, What is International Humanitarian Law?, Fact Sheet, 2004.
• ICRC, Basic Rules of the 1949 Geneva Conventions and 1977 Additional
Protocols, 1988.
• The Academy experts meetings papers
• The Supervision of the Lawfulness of Detention during Armed Conflict
• The Right to Life in Armed Conflict and Situations of Occupation
• Private Military Contractors: Status and State Responsibility for their
Actions
• Targeting military objectives
• http://www.geneva-
academy.ch/RULAC/international_humanitarian_law.php
• http://www.geneva-academy.ch/RULAC/pdf/What-is-IHL.pdf
• “Even War Has Limits”, which can be found in any Ombudsman Office
(Defensoría) in Colombia, or go to the web page
http://www.defensoria.org.co.
• Viteri, Pietro. Dictionary of International Law in Armed Conflicts.
• http://www.iccnow.org/documents/IHLManualDiagramado.pdf