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source of international humanitarian law

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source of international humanitarian law

  1. 1. SOURCE AND FORMS OF HUMANITARIAN LAW PRESENTED BY : ASHMITA ACHARYA LL.B 5TH YEAR
  2. 2. Concept of Humanitarian law • International humanitarian law comprises a set of rules, established by treaty or custom, applicable in situations of armed conflict. As noted, it is inspired by considerations of humanity and the mitigation of human suffering.
  3. 3. • Although the origins of IHL can be traced to at least the nineteenth century, the principles and practices on which it is based are much older. • International humanitarian law, also referred to as the law of armed conflict or the law of war, is designed to balance humanitarian concerns and military necessity.
  4. 4. • It subjects warfare to the rule of law by limiting its destructive effect and mitigating human suffering. IHL covers two key areas: 1. Protection and assistance to those affected by the hostilities 2. Regulation of the means and methods of warfare
  5. 5. Sources of International Humanitarian Law • International Humanitarian Law concept is clearly emerged from 19th century , even though, it was in action from more late days. • Therefore, source of IHL seems to be broader and can be categorized into different branches.
  6. 6. • Thus, it’s sources can be divided into two period of time. • 1. Historical Source • 2. Modern Source
  7. 7. Historical Source • To identify the sources of IHL is to undertake a historical study of the development of the laws of war. IHL treaties have often been developed in response to State behavior in specific wars – often leading to the charge that IHL is ‘one war behind reality’.
  8. 8. A. Battle of Solferino • A Swiss businessman, Henri Dunant, who was travelling through northern Italy, witnessed the aftermath of the June 1859 Battle of Solferino, where tens of thousands of wounded and dying soldiers had been left on the battlefield by their retreating armies.
  9. 9. • Appalled that no systematic relief was being provided to these soldiers, Dunant rallied the townsfolk of nearby Castiglione to provide water, food, and medical assistance. Upon his return home, Dunant wrote of his experience; his work Un Souvenir de Solferino (A Memory of Solferino) became a best seller.
  10. 10. • One of Dunant’s suggestions was for the creation of an international body that could coordinate relief measures for the wounded in the armed forces during wartime. • In conjunction with a Swiss charitable organization (the precursor to the International Committee of the Red Cross
  11. 11. …… Dunant lobbied European governments to implement his suggestions. • This advocacy resulted in the European States drafting and adopting what would become the 1864 Geneva Convention.
  12. 12. B. 1864 Geneva Convention • The first multilateral international law treaty on armed conflict was the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in the Field
  13. 13. • which provided that soldiers rendered hors de combat due to illness or injury were to be protected and cared for, regardless of their nationality or allegiance. • It also provided for the protection of medical and religious personnel; and respect for the execution of their duties in wartime.
  14. 14. C. First Hague Peace Conference • The Conference met with the aim of adopting a unified set of regulations regarding the conduct of armed conflict. • To that end, three conventions and three declarations relating to the means and methods permissible in armed conflict were drafted and adopted.
  15. 15. D. Second Hague Peace Conference • The Conventions and Declarations were revisited at the second Peace Conference at The Hague in 1907, where ten conventions were adopted covering the settlement of international disputes, the laws and customs of war on land, and rules regarding naval warfare – these are known as the Hague Regulations of 1907.
  16. 16. E. 1925 Geneva Protocol • The Hague Regulations were the first internationally applicable documents regarding the conduct of parties to an armed conflict. However, the experiences during World Wars I and II provided the impetus for considerable revision and expansion of many aspects of the law of armed conflict.
  17. 17. • The first revisions and developments came with the adoption of the 1925 Geneva Protocol for the Prohibition of Poisonous Gases and Bacteriological Methods of Warfare, adopted in response to the widespread devastation caused by the use of poisonous gas during the First World War.
  18. 18. • The Protocol banned the employment of poison gases as well as any kinds of bacteriological warfare.
  19. 19. F. Geneva Conventions • The next major development came with the adoption, in 1929 of two Geneva Conventions, one for the protection of Prisoners of War, and the second on Wounded and Sick in Armies in the Field.
  20. 20. • These two conventions were eventually replaced in 1949 with four conventions: • Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;
  21. 21. • Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; • Geneva Convention (III) Relative to the Treatment of Prisoners of War; and • Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War.
  22. 22. • These Conventions introduced a raft of new rules for the protection of persons in time of war, including rules for the protection of persons in occupied territory and for the protection of prisoners of war (POWs).
  23. 23. • The Geneva Conventions have the distinction of being the first multilateral treaty in history to achieve universal ratification; by 2008 every country in the world was a party to the Conventions.
  24. 24. G. Common Article 3 • The Geneva Conventions also introduced what is known as Common Article 3 – the first piece of international law that regulated conduct in non-international armed conflicts.
  25. 25. • Common Article 3, so called as it is common to all four Conventions, sets down some limited but fundamental principles governing conduct in non- international armed conflicts.
  26. 26. H. Additional protocol I • Additional Protocol I provides for its application in situations that are deemed to be: • Armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in…
  27. 27. …the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
  28. 28. • Protocol I also brought about something of a merger between Hague Law and Geneva Law, in that provisions regarding the protection of civilians and participants as well as rules on the means and methods of warfare were combined in the one document.
  29. 29. I. Additional Protocol II. • The increased frequency of non- international armed conflicts in the post-World War II era was also cause for concern. Along with amendments to the international law of armed conflict, changes were also made to the law of non-international armed conflicts, with the adoption of Additional Protocol II.
  30. 30. • Protocol II was designed to develop the law of internal armed conflict beyond the limited concepts outlined in Common Article 3
  31. 31. J. Weapons limitation • From the 1970s onwards, numerous weapons limitation treaties were debated and adopted. • The Convention contains a number of protocols, which prohibit or limit the use of: • weapons that injure by fragments which are not detectable in human body by X-rays (Protocol I);
  32. 32. • on-detectable anti-personnel mines (Protocol II); • incendiary weapons (Protocol III); and • laser weapons that cause permanent blindness (Protocol IV).
  33. 33. • The fifth protocol to the Conventional Weapons Convention requires parties to the Protocol clear any unexploded ordnance, such as cluster bombs, land mines, and explosive weapons stockpiles, at the cessation of hostilities.
  34. 34. Modern Source • Modern international humanitarian law is found in treaties and customary international law.
  35. 35. Treaties • Treaties are written international agreements between States, governed by international law. Treaties can go by many names, including conventions, agreements, and instruments; treaties that relate to or attach in some way to previously adopted treaties are often called protocols.
  36. 36. • Treaties have the advantage of expressly setting out binding obligations for States in their conduct. • However, States are often permitted to make reservations to treaties, whereby a State can modify the scope of the legal obligation owed by the State under the treaty.
  37. 37. • Treaties also require a certain number of States to ratify before the treaty can have legal effect.
  38. 38. Custom • Customary international law is a form of law that derives from two elements – State practice and what is known as opinio juris – the belief that the practice is required by law. Identifying custom relies on looking to certain elements including:
  39. 39. • the degree of consistency and uniformity of the State practice; • the generality and duration of the practice; and • the interests of specially affected States.
  40. 40. • There is a wealth of treaty law relating to armed conflict. • However, the importance of customary international humanitarian law should not be overlooked.
  41. 41. • Customary international law has the potential to evolve and develop at a faster pace than treaty law, and can bind States where treaty law does not; customary international law thus allows for universal application of certain rules.
  42. 42. • Customary international law can also serve to fill in the gaps where the treaty law is insufficient or non- existent – as is the case with non- international armed conflict. Most international humanitarian law treaty rules are considered as having customary status.

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