THEME 6

SELF-CONTAINED LEGAL REGIMES

 THEME 6 - SELF-CONTAINED LEGAL REGIMES

UNIT 2
UNIT 1 UNIT 3 UNIT 4 - INTERNATIONAL
ENVIRONMENTAL LAW & CLIMATE HUMANITARIAN LAW
INTERNATIONAL AIR LAW LAW OF THE SEA
CHANGE PEACE
U N I T 4 - I N T RO D U CT I O N TO T H E I N T E R N AT I O N A L
H U M A N I TA R I A N L AW

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 HUMANITARIAN LAW
The law of war
Also known as
The law of armed conflict.

WHAT IS INTERNATIONAL HUMANITARIAN LAW?

• IHL is a set of principles & rules designed to limit the humanitarian impacts of armed conflicts
• The main goal of IHL involves protecting both combatants & civilians during armed conflicts regardless of the
justice or legality of the war
• These rules apply to various types of conflicts including international & non-international armed confrontations.
• IHL protects people WHO ARE NOT OR ARE NO LONGER PARTICIPATING in hostilities such as
 civilians
 the sick
 the wounded.
• It restricts means & methods of warfare in order to limit weapons & strategies that cause unnecessary suffering.

HISTORICAL BACKGROUND

 The origins of modern humanitarian law can be traced back to the Battle of Solferino in 1859.
 Swiss banker Henry Dunant initiated a movement that led to the establishment of the International Committee of the
Red Cross in Geneva after witnessing the suffering of thousands of wounded combatants left without medical care
 As a result, the first multilateral humanitarian treaty = the Geneva Convention on the Amelioration of the
Condition of the Wounded in Armies in the Field was created in 1864

JUS AD BELLUM VS JUS IN BELLO

THE RIGHT TO GO TO WAR LAW GOVERNING THE WAGING OF WAR & TREATMENT
OF COMBATANTS & CIVILIANS IN TIME OF WAR

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Aspect Jus ad Bellum Jus in Bello (IHL)

Definition Legal principles and criteria Legal rules and principles regulating
governing when a state can use armed conflict conduct and
force or engage in war. treatment of individuals during war.

Categories/Identification - Right to self-defense in response - Protection of combatants (lawful or

to an armed attack. unlawful).

- Collective security through UN - Protection of civilians and the

Security Council authorization. principle of distinction.

- Controversial concept of - Prohibition of certain weapons and

humanitarian intervention. tactics.

- Debated idea of preventive war, - Treatment of prisoners of war.

especially related to weapons of - Prohibitions on torture and
mass destruction. inhumane treatment.

SCOPE OF HUMANITARIAN LAW

IHL has a broad scope & deals different elements of armed conflicts including:

THE TREATMENT OF PRISONERS OF WAR IHL sets rules for the humane treatment & rights of
prisoners of war.

CARE FOR SICK & WOUNDED MILITARY Requires proper care & protection for sick &
PERSONNEL wounded military personnel on battlefield.

IHL seeks to protect civilians during armed conflicts,

PROTECTION OF CIVILIANS DURING ARMED ensuring they are not subjected to unnecessary harm.
CONFLICT AND IN OCCUPIED TERRITORIES The law applies to civilians residing in occupied
territories, protecting their rights and well-being.

LIMITS ON METHODS & WEAPONRY IHL places restrictions on methods & weaponry used in
warfare, aiming to min suffering.
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 APPLICATION OF IHL

 The protective principles of humanitarian law extend to all combatants & civilians in an armed conflict, irrespective
of the justice or legality of the war
 No distinction between lawful & unlawful war
 No distinction between the treatment of civilians & combatants of the aggressor v victim
 Distinction & proportionality

When does international humanitarian law apply? IHL APPLIES TO ARMED CONFLICTS

“An armed conflict exists whenever there is a resort to armed force between States or protracted armed
violence between governmental authorities & organized armed groups or between such groups within a

State.” – Tadic case

• IHL provides protection to various categories of individuals involved in these types of conflicts.

• IHL applies to armed conflicts, whether they are international or non-international.

between states within a single state

The Interplay of The Two Treaties:

• Over time, the Hague & Geneva Conventions have become interconnected, forming the basis of IHL
• The principles & rules contained in these conventions work in harmony to uphold the humane treatment of
all persons affected by armed conflicts, whether they are combatants or civilians.

• The relationship between the two treaty areas is evident in various legal interpretations and instruments,
including the International Court of Justice's advisory opinion in the "Legality of the Threat or Use of Nuclear
Weapons." This opinion highlights the essential role of both branches of IHL in shaping the law governing
armed conflicts

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 SOURCES OF HUMANITARIAN LAW

IHL

THE LAW OF THE HAGUE THE LAW OF GENEVA

the rights & obligations of belligerents in the

Aims to protect combatants no longer
conduct of military operations & limits the means
engaged in the conflict and civilians.
of harming the enemy

LAW OF THE HAGUE

 The law of the Hague includes a set of legal principles that determines the rights and responsibilities of belligerents
during the course of military operations.
parties engaged in armed conflict

 It aims to establish limits on the methods used in warfare while attempting to strike a balance between military
necessity & humanitarian considerations  this body of law regulates the conduct of armed conflicts

Hague Regulations are considered part of CIL, thus you are bound by them
 The Hague Regulations
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 These regulations specify the legal status of those engaged in the conflict, which
STATUS OF BELLIGERENTS:
includes both combatants & non-combatants
The rules governing the behaviour of belligerents during military operations, promoting
CONDUCT OF HOSTILITIES:
humane treatment & respect for the laws of war.
PROHIBITION OF CERTAIN The regulations prohibit the use of weapons designed to cause unnecessary suffering.
WEAPONS: This is in line with the broader principle of minimizing harm in warfare
TERMINATION OF HOSTILITIES: The rules governing cessation of hostilities & transition to peace are also addressed.
The regulations include provisions concerning the rules & responsibilities associated
MILITARY OCCUPATION
with military occupation.

 Two main features:

Determines rights & duties of combatants during combat

Limits methods of harm which combatants may use = rights & duties of combatants & arms which may be used

LAW OG GENEVA

• A body of IHL that aims to protect individuals who are no longer actively engaged in armed conflict, including
 combatants who have become prisoners of war
 civilians not involved in hostilities.

• It is founded on the principle that persons not actively participating in armed conflicts should be treated humanely.
• The Law of Geneva has its historical origins in the Hague Regulations of 1907 & the Geneva Conventions of 1929.
 These early conventions were focused on the protection of prisoners of war & the wounded and sick.

• SA was a party to the 1929 Geneva Conventions, which applied to many belligerent states during World War II, with
the exception of the conflict between Germany & the Soviet Union.

• However, these conventions were replaced by 4 Geneva Conventions of 1949, which expanded protections

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• These four conventions address the following key aspects:

(1) Protection of the wounded and sick in the armed forces in the field.
(2) Protection of the wounded and sick in the armed forces at sea
(3) Treatment of prisoners of war.
(4) Protection of civilians in times of war

• In 1977, two Additional Protocols were added to these conventions to provide additional protection:
(1) Protocol I: Focuses on the protection of victims in international armed conflicts.
(2) Protocol II: Expands protection for victims of non-international armed conflicts, building on the common
provisions of Article 3 of the four Geneva Conventions of 1949.

PRINCIPLES OF HUMANITARIAN LAW

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Humanity:

• The principle of humanity emphasizes the need to lessen human suffering during armed conflicts.
• It is the foundational principle of IHL, underlining the idea that even in the middle of hostilities, considerations
of compassion & the well-being of individuals must be maintained.

• Humanity in IHL seeks to lessen the impact of armed conflict on civilians & combatants who are no longer
taking part in hostilities.

• It requires
 humane treatment
 access to medical care
 protection of basic human rights.

Military Necessity:

 This principle accepts that the conduct of armed conflict often involves the use of force & destruction.
 Military necessity allows the use of force & the application of measures necessary to achieve a legitimate
military objective.
 Military necessity does not justify actions that exceed what is necessary to achieve a military goal.
 It highlights a balance between achieving military objectives & minimizing unnecessary harm to civilians & property.
 Combatants can only engage in military acts necessary to achieve the submission of the enemy, provided their
actions are not otherwise unlawful under IHL.
 If an attack does not have a legitimate military objective or if it violates other provisions of IHL, then it does not
adhere to the principle of military necessity  combatants cannot just attack anyone or anything for no reason.
 They must make the case that the outcome will lead to a military advantage and that the actions are legal under IHL.
 Military necessity is defined by four key elements  all 4 elements that also must be met for military necessity

(1) Violence & destruction in war are allowed, permitting actions such as killing, injuring, capturing, and property
destruction.

(2) The measures used must be indispensable for securing the complete submission of the enemy. In other
words, these actions must be necessary for the military operation and can involve overwhelming force.

(3) The goal is to secure the complete submission of the enemy as soon as possible, recognizing that prolonged
armed conflicts have more devastating consequences for all parties involved.

(4) Acts or measures cannot be used if they are forbidden elsewhere in international law. This element
underscores the importance of adhering to other legal restrictions.

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Distinction:

 The principle of distinction underlines the need to differentiate between combatants & civilians, as well as
between military targets & civilian objects.
 It is NB for protecting non-combatants & minimizing collateral damage.
 Distinction requires parties to the conflict to direct their operations only against legitimate military targets
while sparing civilians & civilian objects.
 The Principle of Distinction states that all parties to a conflict must distinguish between civilians and
combatants and also between military objectives and civilian objects.
 Combatants must also distinguish themselves from the civilian population while engaged in an attack.
 To help distinguish who should be attacked and who should be protected, IHL categorizes people and objects.
Combatants are members of a state’s armed forces.
 Combatants are legitimate targets in armed conflict  civilians are not
 Combatants are entitled to engage in armed conflict & if captured they must be treated as prisoners of war
 Civilians who engage in armed hostilities are unprotected by law of armed conflict & may be tried for
belligerent acts

Prisoners of War
• Governed by Third Geneva Convention 1949
• Founded on principle that prisoner of war is neither a hostage nor a criminal
• Kept in custody for sole purpose of preventing from rejoining the enemy’s armed forces to weaken other side
• Detaining state under strict obligation not to ill-treat prisoner of war & to release & repatriate them without
delay after cessation of hostilities

Proportionality:

➢ Proportionality orders that the harm caused to civilians & civilian objects must not be excessive in relation to
the military advantage anticipated from an attack.
➢ It involves weighing the potential military gain against the potential harm to civilians.
➢ The principle of proportionality aims to prevent disproportionate & indiscriminate attacks, ensuring that the
expected damage to civilians is not excessive compared to the military advantage sought.
➢ Combatants must not engage in an attack where the anticipated loss of civilian life, injury to civilians or
damage to civilian objects is excessive in relation to the direct and concrete military advantage that is
anticipated by conducting the attack.

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 ➢ Even though civilians cannot be targeted purposefully, IHL recognizes that civilians and civilian objects may be
inadvertently harmed.
➢ This is often referred to as collateral damage. Parties to a conflict are obligated to take measures to minimize
collateral damage.
➢ The principle of proportionality requires parties to a conflict to consider if the collateral damage expected to
be caused by a military attack is excessive in relation to the anticipated military advantage.
➢ Proportionality is one of the hardest principles to understand and apply because it is a judgement call.

Prohibition of Causing Superfluous Injury and Unnecessary Suffering:

• This principle prohibits the use of weapons or methods of warfare that cause unnecessary harm or suffering
beyond what is required for military necessity.

• Parties to a conflict are forbidden from employing means of warfare that would cause excessive or superfluous
injury, pain, or suffering to combatants or civilians.

• This principle reflects the humane aspect of IHL.

• The principle of Limiting Unnecessary Suffering prohibits means and methods of warfare that would cause
unnecessary suffering to combatants or civilians.

• Means of warfare include tools or weapons used to carry out military attacks. Methods of warfare are the
strategies and tactics used when carrying out an attack.

• This principle recognizes that in armed conflicts, where two sides have resorted to violence, a certain amount
of suffering will necessarily take place.
• The idea behind the principle is that the means and methods of warfare should not be designed to cause more
suffering than necessary to accomplish military goals.

PROHIBITED ATTACKS & WEAPONS

 There are a number of conventions and they prohibit different conduct.

 Firstly, the prohibition of the use of poisonous gasses & bacteriological methods of warfare
• This stems from WWI
• The use thereof is unlawful in terms of IHL

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Geneva Protocol of 1925:

 Prohibits the use of poisonous gases & bacteriological methods of warfare.

 It was supplemented by 2 additional conventions
 The 1972 Convention prohibiting the production & stockpiling of bacteriological weapons
 The 1993 Convention on the prohibition of the use of chemical weapons.

Ottawa Convention (1997):

 The Ottawa Convention, also known as the Mine Ban Treaty

 It aims to end the suffering & casualties caused by landmines, especially among civilians.
 It bans the use, production, and transfer of anti-personnel landmines.
 This treaty was founded on 3 principles ➔ Right to choose methods of warfare is not unlimited ➔ weapons

that cause unnecessary suffering are prohibited ➔ Need to distinguish between civilians and combatants in
armed conflicts

Cluster Munitions & White phosphorus

Cluster Bombs White phosphorus

Bombs do not explode all at once - they break up into A toxic incendiary weapon that causes chemical burns
smaller pieces which fall over a wide area & then
explode
Leave explosive remnants on the ground after their use Its not illegal when used as obscurant for created a
cause human suffering after the cessation of hostilities – smokescreen in military operations
economic, physical and social impact But it is Illegal when used in densely populated area as it
constitutes an indiscriminate and disproportionate
attack on civilians as it causes unnecessary harm to
civilians
such a weapon is not able to distinguish between Israel's use of white phosphorus in Gaza in 2008–2009
civilians and combatants
faced condemnation for violating the prohibition on
indiscriminate and disproportionate attacks.

Nuclear Weapons

Problem: how do we reconcile nuclear weapons with norms of international humanitarian law?

• Nuclear weapons cause harm to civilians & by design ignores the distinction between civilian & combatants
• Also causes unnecessary suffering & exceeds any purpose of military objective
• Dugard: cogent reasons to oppose use of nuclear weapons

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Treaties There is no treaty that burns the use of nuclear weapons.
• Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water 1963
• Treaty on the Non-Proliferation of Nuclear Weapons 1968
• Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction
on the Sea Bed and the Ocean Floor and in the Subsoil Thereof 1971
• Comprehensive Test Ban Treaty 1996
• African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba)

General Assembly Resolutions

• 1961 & 1972 General Assembly Resolutions to ban nuclear weapons
• South Africa voted against these during apartheid

ICJ: Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons 1996
• Opinion requested by General Assembly
• Arguments in favour of prohibition founded on prohibition on use of force in Charter, customary
international law and conventions and rules of international humanitarian law, human rights and
environmental conventions
• Court failed to answer the question whether threat or use of nuclear weapons is prohibited
• Unanimously: neither customary nor conventional international law specifically authorises the threat or use
of nuclear weapons
• By 11 votes to 3: that neither customary nor conventional international law comprehensively and universally
prohibits the threat or use of nuclear weapons
• Unanimously: that a threat or use of force by means of nuclear weapons that is contrary to art 2(4) of UN
Charter and that fails to meet all requirements of art 51 is unlawful i.e. can only use it in self-defence
• Unanimously: that a threat or use of force by means of nuclear weapons should be compatible with the
requirements of the international law applicable in armed conflicts (international humanitarian law) and
specific obligations under treaties and other undertakings expressly dealing with nuclear weapons
• 7 votes to 7: with President’s casting vote, that threat or use of nuclear weapons would generally be contrary
to the rules of international law applicable in armed conflict and rules of international humanitarian law but
that in view of the current state of international law and facts before the court, it could not conclude
definitively whether threat or use of nuclear weapons would be lawful or unlawful in extreme circumstances
of self-defence in which very survival of state would be at stake
Unanimously: that there exists an obligation to pursue in good faith and bring to a conclusion negotiations
leading to nuclear disarmament in all its aspects under international law Therefore, nuclear weapons are not
unlawful in IL but they are clearly contrary to IL.

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