This chapter examines international humanitarian law, the principal body of international law which applies in times of armed conflict, and which seeks to balance the violence inherent in an armed conflict with the dictates of humanity. International humanitarian law protects the civilian population from the ravages of conflict, and establishes limitations on the means and methods of combat. The chapter first considers the nature of international humanitarian law and identifies some of its cardinal principles and key rules. It then explores the similarities and differences between international humanitarian law and international human rights law, comparing and contrasting their historical origins and conceptual approaches. Given that international humanitarian law applies during armed conflict, the chapter next considers whether there is a need for international human rights law also to apply. Finally, it ascertains the relationship between the two bodies of law and considers some of the difficulties with the application of international human rights law in time of armed conflict.
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25. International Humanitarian Law
Sandesh Sivakumaran
Chapter
27. The Law of Armed Conflict (International Humanitarian Law)
David Turns
The international law of armed conflict (also known as international humanitarian law or the law of war) regulates the conduct of hostilities—including the use of weaponry—and the protection of victims in situations of both international and non-international armed conflict. Rooted in customary law, often of very great antiquity, since the late nineteenth century it has become one of the most intensively codified areas of international law. This chapter outlines the scope of application of the law; issues of personal status (combatants and civilians); the conduct of hostilities (methods and means of warfare, including choice of weapons and targeting operations); the protection of victims (sick, wounded, shipwrecked, prisoners of war, and civilians); and various ways of securing the law’s implementation and enforcement.
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4. War crimes
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of the notion of war crimes. It then covers the criminalization of the serious violation of a rule of international humanitarian law; the objective and subjective elements of war crimes; the nexus with armed conflict; and war crimes in the International Criminal Court Statute.
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29. The Law of Armed Conflict (International Humanitarian Law)
David Turns
The international law of armed conflict (also known as international humanitarian law or the law of war) regulates the conduct of hostilities—including the use of weaponry—and the protection of victims in situations of both international and non-international armed conflict. Rooted in customary law, often of very great antiquity, since the late nineteenth century it has become one of the most intensively codified areas of international law. This chapter outlines the scope of application of the law; issues of personal status (combatants and civilians); the conduct of hostilities (methods and means of warfare, including choice of weapons and targeting operations); the protection of victims (sick, wounded, shipwrecked, prisoners of war, and civilians); and various ways of securing the law’s implementation and enforcement.
Book
Anders Henriksen
International Law provides comprehensive and concise coverage of the central issues in public international law. The text takes a critical perspective on various aspects of international law, introducing the controversies and areas of debate without assuming prior knowledge of the topics discussed. Supporting learning features, including central issues boxes, chapter summaries, recommended reading and discussion questions, highlight the essential points. Topics covered include the history of international law, legal sources, the law of treaties, legal personality, jurisdiction and state immunity. The text also looks at the international law of the sea, human rights law, international environmental law, international economic law, the peaceful settlement of disputes, the use of force, the laws of armed conflict and international criminal law.
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17. Legal Restraints on Violence in Armed Conflict
Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà
This chapter examines the historical development and contemporary operation of the international law of armed conflict. It begins with a discussion of the historical development of this body of law, from the Hague Conventions to the Geneva Conventions and the two 1977 Additional Protocols, to the contemporary relation between international humanitarian law and human rights law, particularly in the field of targeting and detention of members in non-international armed conflicts. It then analyses the status of lawful combatants in international armed conflicts and the question of membership of non-State armed groups, as well as the notion of direct participation in hostilities and ‘unlawful combatants’. It then turns to the restrictions on the use of force based on the principles of distinction and proportionality, the choice of weapons, the protection of war victims, and some compliance mechanisms.
Book
Gleider Hernández
International Law presents a comprehensive approach to the subject, providing a contemporary account of international law. The text offers critical and stimulating coverage of the central issues in public international law, introducing the key areas of debate. It encourages readers to engage with areas of legal debate and controversy and consider how they affect the world today. Topics covered include: the structure of international law; the subjects within the field of international law; international law in operation; international disputes and responses to breaches in international law; and specialized regimes, which include the law of armed conflict, refugee law, international criminal law, the law of the sea, the environment and protection, and international economic law.
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15. The law of armed conflict
This chapter assesses the law of armed conflict. The right to resort to armed force, known as ‘jus ad bellum’, is a body of law that addresses the permissibility of entering into war in the first place. Despite the restrictions imposed by this body of law, it is clear that international law does not fully forbid the use of force, and instances of armed disputes between and within States continue to exist. Consequently, a second, older body of law exists called ‘jus in bello’, or the law of armed conflict, which has sought to restrain, or at least to regulate, the actual conduct of hostilities. The basic imperative of this body of law has been to restrict warfare in order to account for humanitarian principles by prohibiting certain types of weapons, or protecting certain categories of persons, such as wounded combatants, prisoners of war, or the civilian population.
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29. Terrorism
Martin Scheinin
This chapter first addresses the question of whether terrorism constitutes a violation of human rights, or whether the notion of human rights violations can only be applied to action by states, and then considers challenges to the applicability of human rights law in the fight against terrorism, particularly since 9/11. It focuses on the notion of terrorism, and in particular the risks posed to human rights protection by vague or over-inclusive definitions of terrorism. The main section of the chapter deals with some of the major challenges posed by counter-terrorism measures to substantive human rights protections. It is argued that the unprecedented post-9/11 wave of counter-terrorism laws and measures that infringed upon human rights was a unique situation, and that governments and intergovernmental organizations are realizing that full compliance with human rights in the fight against terrorism is not only morally and legally correct but is also the most effective way of combating terrorism in the long term.
