International Humanitarian Law History and Main Principles Gentian

International Humanitarian Law: History and Main Principles Gentian Zyberi, Associate Professor Norwegian Centre for Human Rights University of Oslo

Outline • Historical Development of IHL; • IHL Scenarios; • Main IHL Principles; • Additional/Recommended Resources. G. Zyberi, NCHR/Ui. O 2

Historical Development of IHL • • • Antiquity and the Middle Ages Culture and religion Precursors of Geneva and Hague law, pre WW 1 Post-WW 2 merger: Geneva Conventions and Additional Protocols • Other IHL treaties. G. Zyberi, NCHR/Ui. O 3

Some Landmark Developments (1) • • 1863 Lieber Code 1864 Geneva Convention 1868 St. Petersburg Declaration 1880 Oxford Manual of the Institute of International Law • Geneva Conventions of 1906, 1929 and 1949 • Hague Regulations of 1899 and 1907 • 1977 Additional Protocols G. Zyberi, NCHR/Ui. O 4

Some Landmark Developments (2) • Geneva Gas Protocol • Hague Convention on Cultural Property • Conventional Weapons Convention (and Additional Protocols) • Landmines Convention • Cluster Munitions Convention • Statutes of international criminal courts and tribunals G. Zyberi, NCHR/Ui. O 5

Rules of War in a Nutshell • ICRC, Rules of War in a Nutshell, 19 August 2014 – 4: 43 • 150 years of humanitarian action: Rules to limit suffering ( • Early principles included in the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August 1864: Ø Relief to the wounded without any distinction as to nationality; Ø Neutrality (inviolability) of medical personnel and medical establishments and units; Ø The distinctive sign of the red cross on a white ground. G. Zyberi, NCHR/Ui. O 6

Scenario 1 • • Utanabuti is a small country which won its independence in the 1960 s. Utanabuti has been mostly stable and largely democratic, with successive governments being formed by leaders of the independence movement. Utanabuti has suffered bouts of conflict with the neighbouring state of Ysarkris since 1995. Ysarkris is a dictatorship with extremely repressive internal policies and a large and well-funded military. The conflict has recently escalated with a series of clashes and border incidents. These border incidents were instigated by Ysarkris, and continued despite condemnation by the United Nations. Ten days ago, Ysarki forces entered the sovereign territory of Utanabuti, and carried out a massacre of many civilians in a frontier village. In particular, Ysarki forces targeted the local hospitals – sparing no one. There is now an open and active conflict raging on the territory of both countries, though neither Ysarkris nor Utanabuti have formally declared war. You are military commanders and planners in the armed forces of Utanabuti. Your government has instructed you to defeat the forces of Ysarkris at all costs, and to restore stability to your embattled country. You are considering carrying out an attack on the main military barracks in Ysarkris. It is likely that a school, located just outside the perimeter of the base, will be severely damaged in any attack. It is unclear whether this is a boarding school or whether children and teachers are only present during the day. Do you undertake this operation? Would you make any changes to the battle plan? G. Zyberi, NCHR/Ui. O 7

Scenario 2 • In the course of a sustained battle between your unit and Ysarki forces, you have managed to surround the remaining enemy forces. Three Ysarki soldiers (including a top military commander) drop their weapons and declare that they are surrendering. Another surrenders but is badly wounded. You know that this unit in particular was directly responsible for carrying out the massacre of the Utanabuti civilians. You are, however, far from any of your own units and know that other Ysarki units are approaching. • You radio your commander instructs you to kill the remaining soldiers and return to base as soon as possible. Do you follow these orders? G. Zyberi, NCHR/Ui. O 8

Scenario 3 • You have received intelligence that the Ysarki forces stationed in a nearby town are planning an imminent attack against your Utanabuti civilians and power infrastructure. Their attack is likely to be launched the following morning. It is critical that you protect civilians and stop this attack from taking place. • Your top military planner advises sending in one of your soldiers disguised as a civilian. He would be able to infiltrate the Ysarki position and assassinate the Ysarki commander stationed there, with a concealed weapon. This could probably stop their planned attack. • Do you approve this operation plan? G. Zyberi, NCHR/Ui. O 9

Main IHL Principles • Military necessity (Art. 23(g), Hague Regulations IV 1907) • Humanity (Common Article 3 to the GCs; Arts. 12/12/13/27 of the GCs; Art. 40, AP I; Art. 4, AP II) • Distinction (Art. 48, AP I; Art. 52(2), AP I) • Proportionality (Arts. 51(5)(b) and 57(2)(b), AP I) • Prohibition of unnecessary suffering or superfluous injury (Art. 35, AP I) • Chivalry/ honorable conduct (Art. 37, AP I) • Others? G. Zyberi, NCHR/Ui. O 10

Concluding Remarks • • Aims of IHL Sources of IHL General principles of IHL Development of IHL throughout history • Current challenges to the enforcement of IHL. G. Zyberi, NCHR/Ui. O 11

Additional/Recommended Resources • ICRC databases on IHL; • International Review of the Red Cross; • Other international legal journals (AJIL, EJIL, Journal of International Humanitarian Legal Studies, The Hague Yearbook of IHL); • International law blogs (International Law Observer, Opinio Juris, EJIL: Talk, Armed Groups and International Law, International Criminal Law Bureau); • ASIL Electronic Resource Guide; • Audiovisual Library of International Law. G. Zyberi, NCHR/Ui. O 12