International Humanitarian Law 1
International Humanitarian Law (IHL)
 It is a set of rules which seek, for
humanitarian reasons, to limit the effects
of armed conflict
 It protects persons who are not or are no
longer participating in the hostilities and
restricts the means and methods of
warfare
What are the sources of IHL?
 Contained in the four Geneva
Conventions of 1949
 Nearly every State in the world has agreed
to be bound by them. The Conventions
have been developed and supplemented
by two further agreements: Additional
Protocols of 1977 relating to the
protection of victims of armed
conflicts
Distinguish IHL from International Human
Rights Law
 IHL and International human rights law
are two distinct but complementary
bodies of law
 Both seek to protect the individual from
arbitrary action and abuse, with a view to
safeguarding the fundamental rights of
the individual
 IHL – specialized body of human rights
law, fine-tuned for times of armed
conflict
 Its provisions are formulated in such a
way as to take into account the special
circumstances of warfare
 They may not be abrogated under any
circumstances. Usually they apply “across
the front line”, i.e. the armed forces have
to respect humanitarian law in their
dealings with the enemy (and not in the
relation with their own nationals)
 Some of its provisions have no equivalent
in human rights law, in particular the rules
on the conduct of hostilities or on the use
of weapons
Right Against Torture
 In Ireland v UK (1978), the European
Court of Human Rights defined torture as
“a deliberate inhuman treatment or
punishment causing very serious and
cruel suffering”
 Case involved the UK’s use of the Five
Techniques on detained IRA members
suspected of terrorism
 Although the treatment received by the
IRA detainees was inhuman and
degrading, it cannot be deemed as torture
Right Against Inhuman Treatment
 In Soering v UK (1989), the court defined
inhuman treatment tociver such acts as
intentionally inflicting severe mental
or physical suffering or if the
treatment inflicted humiliates the
person before others or drives him to
act against his own will or conscience”
 There is no requirement that “inhuman
treatment and punishment” should
 involve physical contact or proximity
Right Against Degrading Punishment
 In considering whether treatment is
“degrading” the court will have regard to
whether its object is to humiliate and
debase the person concerned and whther
it adversely affected his or her personality
 What makes a punishment degrading
depends on “all the circumstances of the
case and, in particular, on the nature of
the punishment itself and the manner and
method of its execution”
When may a State derogate from a treaty?
 “In times of war or other public
emergency threatening the life of the
nation” a member state may derogate
from certain protections afforded by the
convention, but only “to the extent
strictly required by the exigencies of
the situation”
Requisites of Derogation
1. It must be in time of war or other public
emergency threatening the life of the
nation
2. The actions taken by the state must not
exceed those strictly demanded by the
critical nature of the situation
3. Those actions should not be at variance
with existing obligations under IL

4. If the state has already declared its
derogation, that derogation should end
when the emergency situation itself has
subsided
Conventions Against Terrorism
 The United Nations has 13 conventions
in force related to terrorism
 The most comprehensive of these is the
“International Convention for the
Suppression of the Financing of
Terrorism”
 With 129 ratifying states, it is considered
to be the closest the international
community has come to establishing a
universal definition of terrorism
Terrorism: Universal Definition
 Any act intended to cause death or
serious bodily injury to a civilian
 Or to any other preson not taking an
active part in the hostilities in a
situation of armed conflict
 The purpose is to intimidate a
population or to compel a government
or an international organization to do or
to abstain from doing any act
Are Terrorist entitled to human rights?
Yes.
 Since terrorist are civilian criminals
 They should be prosecuted and punished
under domestic criminal laws, with
substantial and procedural due process
 The US argues that “terrorist” are
“unlawful combatants: and are
therefore, not entitled
 Since terrorist do not respect the rule of
law, why should we deal with them under
the strict standards of Human Rights?
May Terrorists be subjected to torture?
 Article 7 (ICCPR): “No one shall be
subjected to torture or to cruel inhuman
or degrading treatment or punishment”
 Sec. 27 (HSA 2007): No threat,
intimidation, or coercion, and no act
which will inflict any form of physical
pain or torment, or mental, moral, or
psychological pressure on the detained
International Humanitarian Law 2
person, which shall vitiate his free-will,
shall be employed in his investigation and
interrogation
 The SC of Israel has ruled that:
“Interrogators may use torture in
extreme circumstances under the
necessity defense”
- Judgment on the Interrogation
Methods applied by the GSS
Torture Convention Definition
 “any act by which severe pain or suffering
whether physical or mental”
 Is intentionally inflicted on a person
 For such purposes as obtaining from him
or a third person information or a
confession
 Punishing him for an act he or a third
person has committed or is having
suspected of committing
 Or intimidating or coercing him or a third
party, or for any reason based on
discrimination of any kind
Derogation by the US
 In Rasul v. Bush, the US SC ruled that US
exercises “complete jurisdiction and
control” over the Guantanamo Bay Naval
Base
 The US may, validly derogate from its
treaty obligations due to the War on
Terror and adopt the “Five
Techniques” of interrogation
Five Techniques
 The case of Ireland v. UK, involved the use
of the Five Techniques on detained IRA
members suspected of terrorism
 The court found that:
o Hooding
o Loud music
o Sleep deprivation
o Food and drink deprivation
o Stress position
DO NOT AMOUNT TO
TORTURE.
What is an international crime?
 Act universally recognized as criminal,
which is considered a grave matter of

international concern and for some valid
reason cannot be left within the exclusive
jurisdiction of the State that would have
control over it under ordinary
circumstances
May a person be punished for an act or
conduct which did not constitute a crime at
the time it was committed?
No.
 International Criminal Law applies the
principle of Nulla Poena Sine Culpa.
 No person shall be punished for act or
conduct where there is no law punishing
it as a crime at the time it was committed
Are war crimes and crimes against humanity
subject to a state of limitations?
No.
 It is an established principle in
international criminal law that no period
of limitation shall apply to war crimes and
crimes against humanity to secure their
universal application
What are the Nuremberg Principles?
 The Nuremberg Principles are a set of
guidelines adopted by the UN
International Law Commission in 1950
 The basic premise of the principles is that
no person, no matter what their office,
stands above IL
a) Principle I – any person who
commits an act which constitutes a
crime under IL is responsible
therefore and liable to punishment
b) Principle II – the fact that internal
law does not impose a penalty for an
act which constitutes a crime under
IL does not relive the person who
committed the act from responsibility
under IL
c) Principle III – the fact that a person
who committed an act which
constitutes a crime under IL acted as
Head of State or responsible
Government Official does not relive
him from responsibility under IL
d) Principle IV – the fact that a person
acted pursuant to order of his
Government or of a superior does
International Humanitarian Law 3
not relieve him from responsibility
under IL provided a moral choice
was in fact possible to him
e) Principle V – any person charged
with a crime under IL has the right to
a fair trial on the facts and law
f) Principle VI – the crimes hereinafter
set out are punishable as crimes
under IL: War crimes, crimes against
peace, and crimes against humanity
Crimes against Peace
 Planning, preparation, initiation or waging
of a war of aggression or a war in
violation of international treaties,
agreements or assurances or participation
in a common plan or conspiracy for the
accomplishment of any of the said acts
War Crimes
 Violations of the laws or customs of wars
which include, but are not limited to,
murder, ill-treatment or deportation to
slave labor or for any other purpose of
civilian population of or in occupied
territory, murder or ill-treatment of
prisoners of war, of persons on the seas,
killing of hostages, plunder of public or
private property, wanton destruction of
cities, towns, or villages, or devastation
not justified by military necessity.
Crimes against Humanity
 Murder, extermination, enslavement,
deportation and other inhuman acts done
against any civilian population or
persecutions on political, racial or
religious grounds when such acts are done
or such persecutions are carried on in
execution of or in connection with any
crime against peace or any war crime.
Remedy Against International Crimes
 Rome Statute of the International
Criminal Court provides an avenue for
the prosecution and trial of international
criminals
 Ratified by 120 states, with seven against
(including US, China, and India) and with
21 abstentions (including Turkey,
Singapore, Sri Lanka, and Mexico)

Crimes within ICC Jurisdiction
1. Genocide
2. Crimes against humanity
3. War crimes
4. Crimes of aggression
Exercise of Jurisdiction
1. State Party
2. Security Council
3. Prosecutor of Hague
 Matters can be referred to the Court by a
State Party to the Rome Statute, by the
Prosecutor and by the UN Security
Council
Jurisdiction Over Crimes
 The ICC has jurisdiction over:
a. Crimes committed by nationals of
States that have ratified the ICC
statute
b. Crimes committed on territory of
states that have ratified the treaty
Adherence to Jurisdiction
 The Court may exercise its jurisdiction
over the matter if either the State in
whose territory the crime was committed,
or the State of the nationality of the
accused, is a party to the Statute
 When a matter is referred by the Security
Council, the Court will have jurisdiction
regardless of whether the State concerned
is a party to the ICC treaty
Non-Party States
 The Court will have jurisdiction over
individuals who committed crimes on the
territory of an accepting state or who are
nationals of an accepting state
 The treaty does not bind states that
are not parties
 Such states have no obligation, for
example, to surrender suspects, cooperate
with investigations or do anything else
Role of the UN
 The Security Council may refer a
“situation” to the Court when one or
more of the crimes covered by the Statute
appear to have been committed
International Humanitarian Law 4
 This would provide a basis for the
Prosecutor to initiate an investigation
 The Security Council may request that the
ICC defer an investigation or prosecution
for a renewable period of 12 months
 This deferral is to ensure that the Security
Council’s peace-making efforts will not be
hindered by the Court’s investigations or
prosecutions
Superior Orders
 Under the Rome Statute, a defendant will
be able to avoid criminal responsibility by
showing that he was under a legal
obligation to obey the order, that he did
not know that the order was unlawful and
that the order was not manifestly unlawful
(Art. 33)
 The defense, however, is not available to
those accused of genocide or crimes
against humanity (Art. 33 (2))
Civilian Leaders
 Civilian leaders can be held responsible if:
1. The subordinate was under the
superior’s “effective authority and
control”
2. The subordinate’s criminal acts were
“a result” of the superior’s “failure to
exercise control properly”
3. The superior “knew, or consciously
disregarded, information that
clearly indicated” a crime was being
or would be committed
4. The criminal activities “were within
the effective responsibility and
control” of the superior
5. The superior did not take all
reasonable and necessary measures to
prevent or punish the crimes
Immunity of Head of State and the ICC
 In March 2009, the Pre-Trial Chamber
(PTC) of the ICC authorized the issue of
an arrest warrant in respect of Pres. Al-
Bashir of Sudan in relation to the alleged
atrocities committed in Darfur
 raised the issue of whether a serving head
of state may rely upon under IL to shield
themselves from proceedings before
international criminal tribunals