International Humanitarian Law and Use of Force

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INTERNATIONAL

HUMANITARIAN LAW


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Use of Force

Article 2(4) of the Charter declares that:

[a]ll member shall refrain in their international relations from thethreat or use of force against the territorial integrity or politicalindependence of any state, or in any other manner inconsistentwith the purposes of the United Nations.

This provision is regarded now as a principle of customary

international law and as such is binding upon all states in theworld community.

Article 2(4) was elaborated as a principle of international law inthe 1970 Declaration on Principles of International Law and

analyzed systematically. First, war of aggression constitute a crime against peace for

which there is responsibility under international law.

Secondly, states must not threaten or use of force to violateexisting international frontiers or to solve international disputes.


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Use of Force

Thirdly, states are under a duty to refrain from acts of

reprisal involving the use of force.

Fourthly, states must not use force to deprive peoples of

their right to self-determination and independence.

Fifthly, states must refrain from organizing, instigating,

assisting or participating in acts of civil strife or terroristacts in another state and must not encourage the

formation of armed bands for incursion into another

states territory.

Important exceptions to Article 2(4) exist in relation to

collective measures taken by United Nations and with

regard to the right of self defence.


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The right of self-defence

The tradition definition of the right of self-defence in customary

international law occurs in The Caroline case. This disputerevolved around an incident in 1837 in which British subjectsseized and destroyed a vessel in an American port. This hadtaken because the Caroline had been supplying groups ofAmerican nationals, who had been conducting raids intoCanadian territory. In the correspondence with the Britishauthorities which followed the incident, the AmericanSecretary of State laid down the essentials of self-defence.

There had to exist a necessity of self-defence, instant,overwhelming , leaving no choice of means, and no moment fordeliberation. Not only were such conditions necessary before self-defence became legitimate, but the action taken in pursuance of itmust not be unreasonable or excessive, since the act, justified bythe necessity of self-defence , must be limited by that necessity,and kept clearly within it. These principles were accepted bythe British government at that time and are accepted as partof customary international law.


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The Right of Self-Defence

Article 51 of the Charter provides that:

Nothing in the present Charter shall impair the inherent right ofindividual or collective self-defence if an armed attack occursagainst a member of the UN, until Security Council has takenthe measures necessary to maintain international peace andsecurity. Measures taken by members in the exercise of thisright of self-defence shall be immediately reported to the

Security Council and shall not in any way affect the authorityand responsibility of the Security Council under the presentCharter to take at any time such action as it deems necessaryin order to maintain or restore international peace and security.

There is extensive controversy as to the precise extent of theright of self-defence in the light of Article 51. On the one hand, itis argued that Article 51 in conjunction with Article 2(4) nowspecifies the scope and limitations of the doctrine. In otherwords, self-defence can only be resorted to ifan armed attackoccurs, and in no other circumstances.


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The Right of Self-Defence

On the other hand, there are writers who maintain

that the opening phrase in Article 51 specifying

that nothing in the present Charter shall impair the

inherent right ofself-defence means that there

does exist in customary international law a right ofself-defence over and above the specific

provisions of Article 51, which refer only to the

situation where an armed attack has occurred.


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International Humanitarian

Law ?

the RULES which seek, for humanitarian

reasons, to l im it the effects of armed

conf l ic t,protect people who are not, or

are no longer taking part in the hostilities,

and to restrict the methods and means ofwarfare employed


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IHLor

the law of armedconflicts

orlaw of war

Geneva Hague


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Geneva

the law of Geneva is designed tosafeguard military personnel who areno longer taking part in the fightingand people not actively involved inhostilities

Hors de combat

Civilians Medical/religious personnel


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The Hague

the law of The Hague establishesthe rights and obligations ofbelligerents in the conduct ofmilitary operations, and limits themeans of harming the enemy


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International humanitarian law proh ib i tsall

means and methods of warfare which:

fail to discriminate

cause superfluous injury orunnecessary suffering

causesevere orlong-term damage to theenvironment.


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Other agreements prohibit the use of certain

weapons and military tactics and protect certain

categories of people and goods.

the 1954 Convention for the Protect ion o f Cul tural Propertyin theEvent of Armed Conflict, plus its two protocols;

the 1972 Biolo gical Weapon sConvention;

the 1980 Convent ional Weapons Convent ionand its four protocols;the 1993 Chemical WeaponsConvention;

the 1997 Ottawa Convention on ant i -person nel m ines;

the 2000 Optional Protocol to the Convention on the Rights of the Childon the involvement ofchi ldren in armed co nf l ic t.

Many provis io ns o f internat ional hum anitar ian law are now accepted ascustom ary law that is, as general rules by which al l States are boun d.


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HENRI DUNANT

BATTLE OF SOLFERINO


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History

1859 Battle of Solferino

1863 ICRC

Geneva Conventions - 1864

Hague laws 1899/1907

1949Geneva conventions

1977 Additional Protocols


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Geneva Conventions 1949

Convention (I) for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field. Geneva, 12 August 1949.Convention (II) for the Amelioration of the Condition of Wounded,

Sick and Shipwrecked Members of Armed Forces at Sea. Geneva,

12 August 1949.Convention (III) relative to the Treatment of Prisoners of War. Geneva,

12 August 1949.Convention (IV) relative to the Protection of Civilian Persons in Time of War.

Geneva, 12 August 1949.
http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079?OpenDocumenthttp://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5?OpenDocumenthttp://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68?OpenDocumenthttp://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/44072487ec4c2131c125641e004a9977?OpenDocument


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Additional Protocols 1977

Protocol Additional to the Geneva Conventions of 12 August 1949, andrelating to the Protection of Victims of International Armed Conflicts(Protocol I), 8 June 1977.

Protocol Additional to the Geneva Conventions of 12 August 1949, andrelating to the Protection of Victims of Non-International ArmedConflicts (Protocol II), 8 June 1977.

Neither Iraq nor the US have rat i f ied the

Protocols
http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/d67c3971bcff1c10c125641e0052b545?OpenDocument


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International Human Rights Law

Universal Declaration of Human Rights1948

International Covenant on Social,Economic andcultural Right

International Covenant on Civil and Political Rightsother conventions/covenants

Convent ion on the Status of Refugees 1951

Guiding Princ ip les on Internal Displacement -1998


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International Tribunals

Nuremburg

ICTY - Hague ICTR - Rwanda

Sierra Leone

International Criminal Court (Rome

1998/2002)

Universal Jurisdiction

Genocide

War CrimesCrimes Against Humanity


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Current Issues

Allegations of indiscriminate bombing

Targeting under IHL

Ensuring Humanitarian Access

Status of Combatants, Civilians andCivilians Taking Up Arms

Suicide Attacks - Perfidy

Occupying Forces


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International Delegates


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Water

Systems


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Medical Assistance


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Family Tracing


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Refugee Camps


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Orthopaedic Centres


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Orthopaedic

Centres


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"As human beings, we cannotbe neutral, or at least have no

right to be, when other humanbeings are suffering. Each ofus...must do what he or shecan to help those in need, even

though it would be much saferand more comfortable to donothing."

- Kofi AnnanFormer UN Secretary-General

International Humanitarian Law and Use of Force

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