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The International Legal

Framework

Rules governing the Rules governing International


legality (legitimacy) the conduct of Human Rights
of the use of force hostilities (IHL) Law (IHRL)

United Nations Charter Geneva Conventions & UDHR, ICCPR


(Arts 2(4), 51 & 42) Additional Protocols & ICESCR
40th Anniversary of the 1977 Additional
Protocols: Main Contributions to IHL
Larry Maybee, Regional Legal Adviser
ICRC Delegation for East Asia
Objectives of the Diplomatic Conference

Against the backdrop of decolonisation (triple the number of


States), the proliferation of non-international armed conflicts,
guerrilla fighters adopting unconventional/asymmetric warfare,
the rapid development of weapons & technology since WW II
and the lack of protection of civilians in these new conflicts…

1.Clarify and reaffirm existing principles of IHL

2.Codify and further develop essential rules for


the conduct of hostilities (CoH)
Main achievements of the 1977
Additional Protocols (AP I & II)

• Complement & supplement the Geneva Conventions


• Consensus and ownership of IHL by States
(124 States in 1977; 174 (AP I) & 168 (AP II) today)

• Codified IHL rules for the conduct of hostilities (AP I)


• Contribution to the development of customary IHL
• First treaty for non-international armed conflicts (AP II)
• Strengthened protection of victims (civilians & others)
in international & non-international armed conflicts
• Convergence of IHL & human rights law (mutual)
(e.g. AP I, Arts. 75-79 & AP II Arts. 4-6)
CODIFICATION OF IHL RULES ON THE
CONDUCT OF HOSTILITIES (CoH)
Limitation:

The right of Parties to a conflict to choose


methods and means of warfare is not
unlimited. (AP I Article 35)

 Dates back to the St Petersburg Declaration (1868)


Military Necessity

It is permissible to use those measures not forbidden by


international law which are necessary to secure the
complete submission of the enemy as soon as possible
with the least expenditure of personnel & resources.
Distinction:

Parties to a conflict shall at all times


distinguish between :
the civilian population & combatants/fighters

military objectives & civilian objects

Attacks shall be directed solely against


combatants/fighters and military objectives

AP I Arts. 48, 51 & 52


Military objectives

Military objectives are those objects which make an


effective contribution to military action, and whose
destruction, capture or neutralisation, in the
circumstances ruling at the time, offer a definite military
advantage.

AP I Art 52(2)
Proportionality:

The collateral damage arising from military


operations must not be excessive in relation
to the direct and concrete military advantage
anticipated from such operations.
(AP I Art. 57(2))
Indiscriminate attacks are prohibited:
Indiscriminate attacks are:
 those which are not directed at a specific military
objective

 those which employ methods or means of combat


which cannot be directed at a specific military objective
those which employ methods or means the effects of
which cannot be limited to a specific military objective
 attacks which are expected to cause incidental
casualties / damage to civilian objects which would be
excessive in relation to the concrete and direct military
advantage anticipated (i.e. are disproportionate)
AP I Art. 51 (4 & 5)
Precautionary measures:
During military operations, all feasible precautions must
be taken to spare the civilian population and objects and
protect them against the dangers resulting from the
effects of hostilities.

• Verify that targets are military objectives


• Avoid locating military objectives within or near
the civilian population / remove civ. population
• Advance warnings / timing of attack
• Refrain, cancel or suspend attacks
• Selection of targets, methods & means employed
(tactics & weapons)
AP I Art. 57 & 58
Human Shields:

The use of human shields is prohibited:


The presence or movements of the civilian population or
individual civilians shall not be used to render certain
points or areas immune from military operations, in
particular in attempts to shield military objects from
attacks, or to shield, favour or impede military
operations...

Any violation of these prohibitions shall not release the


parties to the conflict from their obligations… including
the obligation to take precautionary measures…
AP I Arts. 50(7) & (8)
AP I Art. 51(4&5)

AP I Art. 57 & 58

AP I contains clear
CoH rules, including
Distinction,
Proportionality,
Precautions &
General Protection
of Civilians
CONVERGENGE OF IHL & HUMAN
RIGHTS LAW
(parallel development & mutually reinforcing)
MODERN CONFLICTS: TRENDS &
REMAINING CHALLENGES
Trends in Contemporary Conflicts

• Growth in number/types of armed conflicts


• Conflicts becoming longer, more protracted
• Conflicts becoming regional, global, internationalised
• Multiplication (and fragmentation) of non-state actors
• Conflicts increasingly fought in populated, urban areas
• High numbers (percentage) of civilian casualties
• Repudiation of basic/core IHL rules (e.g. attacks
against civilians & medical facilities/staff)
• Widespread, frequent IHL violations, no accountability
(perception)
Common Practices – IHL Violations
• Deliberate/indiscriminate attacks against civilians
• Inadequate (or no) precautions taken in attack
• Mixing of fighters and civilians (deliberate)
• Misuse of protected objects & use of human shields
• Improper selection/use of weapons (i.e. EWPA, white
phosphorous, barrel bombs) or use of illegal weapons
• Denial of protections for victims (civilians, wounded,
detainees/POW, surrendered fighters)
• Lack of respect for medical facilities /ambulances /staff
• Denial of access for humanitarian organisations
CONCLUSIONS…