okay welcome back before the break we talked about the principle of proportionality which dovetails the principle of military necessity and the principle of Distinction the fourth major principle of IHL which I would like to discuss with you is the principle of humanity and the principle of humanity deals with um a set of humanitarian interests we have so far not covered explicitly and that is protection of soldiers so so far we were talking about IHL as designed to minimize harm and suffering but we were specifically talking about protecting civilians so civilians cannot be targeted civilians should
be distinguished from military personnel but the question is what happens with the military personnel themselves can the military is their lives uh are if their lives their um freedom from being tortured freedom from being subject to other cruel treatment is it also protected by by the laws of war and the answer is yes I mean IHL does also take I mean introduce certain protections with regard to um to to military personnel uh and where this uh Finds Its first expression uh is in the uh 19th century the mid 19th century uh one area which we
will uh discuss shortly has to do with the protection of um wounded soldiers uh which are considered or the combat they are uh no longer posing a military threat and hence they should be um humanely treated but another area where we are seeing protection of uh mil of the of humanitarian interest involving military personnel soldiers uh which uh is um uh which has been introduced in the uh mid 19th century is has to do with the uh protection of soldiers from um uh Weaponry from arms that are considered cruel because they they uh uselessly aggravate
their suffering or render their death inevitable so this was one of the first instruments IHL instruments that we are seeing at that time called the usin Bellow instrument the Declaration of St Petersburg from 18168 which tells with the prohibition on using um low weight explosive bullets which not only strike the uh the adversary Soldier but also explode in that soldier's body uh with the impact with the effect being basically rendering uh um a neutralizing wound into a life-threatening you uh wound or a life-threatening wound into a certain death uh and the idea was that uh
for um the legitimate purpose of war is to neutralize enemy soldiers it is not to kill enemy soldiers and if if one can use a weapon that uh neutralizes a soldier without killing that s Soldier or without turning that Soldier uh to to to become uh maimed uh in ways which are unnecessary that would be somewhat inhumane and we have a a more uh modern expression of that idea in article 35 paragraph two of additional protocol one that provides that it is prohibited to employ weapons projectiles and materials and methods of warfare of a nature
to cause Superfluous injury and unnecessary uh suffering so the idea here is that there are limits on the choice of weapon there are limits on the means and methods of warfare uh and one of the protected interest is the humanitarian interest of the soldier uh and an example of a specific treaty that uh internalizes this notion is the 1980 Conventional Weapons convention that has uh restrictions on the use of certain weapons some of which are related to the principle of Distinction but some of which are related to the principle of humanity for instance the the
protocols to the Conventional Weapons convention do uh provide uh for instance limit on use on the use of blinding lasers uh on the basis of the proposition that one could use neutralizing lasers that would create temporary blind blindedness but there is no um military justification from actually resorting to a more extreme force form of laser weapon which is a laser weapon that creates permanent blindness so the humanitarian interest of the soldier could be accommodated without actually affecting the the outcome of the of the specific uh struggle between the two militaries another more recent and somewhat
more controversial application of the principle of humanity has to do with the with the problem of the non-threatening soldier so there are situations in which a soldier could be neutralized in ways that do not involve uh The Taking of that soldier's life or where the soldier is already uh no longer constituting a threat because uh the Soldier is escaping and the war is about to end um under traditional IHL as long as as as the conflict is ongoing a soldier is a military Target and that Soldier can be uh can be killed or neutralized the
only constraint that has been developed in in positive law in in actual treaties has been certain limits on certain types of weapons uh so we we've seen the labor the laser weapons there are also restrictions on certain certain bullets which are either exploding or expanding uh but there is no General provision in IHL uh which uh which requires detention instead of killing or which uh um requires a military to consider what is the actual risk that emanates from a soldier uh and that Soldier could be a combat soldier that Soldier could also be a um
Soldier involved in logistics such as the Cook or someone who uh who is a driver or what have you um there is now increasingly with the rise of uh humanitarian considerations and human rights law there is an increasingly a push in certain circles including within the icrc the international committee on the red of the Red Cross which serves under the Geneva Convention as the Cadian of IHL and as a neutral party which would help um the battling parties on the the parties on the battlefield the States involved in an armed conflict to uh basically help
them um Implement their their obligations under IHL so the ICC has put forward in 2009 a statement called an interpretive guidance uh on Direct participation in hostilities which does stipulate that um that there would be circumstances in which it would be impermissible to uh kill an enemy soldier when uh the same object of neutralizing that Soldier uh could be obtained by less harmful uh measures such as detention or wounding that Soldier uh whether this reflects current international law or not is still very much debatable now these are the four principles now before concluding I would
like to also allude to some other principles that not so much relate to the um operational contents of IHL but rather to the manner of application of IHL how does IHL applic apply viav other bodies of law uh of international law and there are three topics which I want to uh discuss with you one is the issue of the um the principle of reciprocity the the role or the place reserved for reciprocity within IHL secondly the peremptory or use cogin uh uh uh status of uh of um certain IHL norms and third it is the
the place that uh international criminal law plays with regard to uh IHL so with regard to reciprocity uh the main principle that we have in in the Vienna convention on the law of treaties uh which is uh a treaty that does not deal with IHL but more generally with the idea of reciprocity in treaty relations the idea is essentially when a state violates international law and the other state the victim of that violation can also engage in a reciprocal violation so this is sometimes referred to as a counter measure so a violation of a treaty
by a treaty right by one party could entail a violation of the other treaty right by the other party but the Vienna convention States explicitly that this does not apply to obligations of a humanitarian character meaning that IHL is not largely is not by and large subject to principle of principle of reciproc in the application of its Norm so if State a bombs civilians located in state B State B does not have the right to engage in a reprisal by bombing the civilians of state A in state a and the reason why we have this
there there is a practical there is a practical uh consideration that is that once um uh violation occurs if we have reciproc rity if we have reprisals we will uh enter into a spiral of and NeverEnding violations uh mind you that some of the harms that are caused to civilians during armed conflict are um are non unintentional sometimes it's a wrong intelligence sometimes theong civilians are in the wrong place at the wrong time and if you have uh an opening for reprisals uh then a mistake could very quickly transform into uh the whole the collapse
of the entire regime but on a more principled approach what is perhaps important here is that um the [Music] um object of protection is not the state so when a state is is implementing IHL it is doing so not necessarily in order to protect the interest of the other state it is really directly conferring benefits on the C cilian of the other states so it does introduce a certain type of uh legal relationship between the state and the civilians of the other state so the fact that the the state of nationality of those civilians had
violated the law does not deprive those enemy civilians from their own rights and interests under international law so there is actually is thinking increasingly thinking about IHL as involving a triang angular relationship between a state another state and protected persons which would typically be um civilians of that other other state or prisoners of War of that other state or um wounded soldiers from that other state so this is the uh this is one Element and I will come back to the idea of protected persons shortly the second principle which I want to identify is the
principle of use cogin you cogens is a principle in customary international law also has some reflection in treaty law uh which maintains that there are some Norms that can be agreed upon uh between States but there are some Norms that are so important and so Central to intern to the international public order that they cannot be stipulated upon so one state cannot agree for instance to join another state in attacking a third State because the principle of the prohibition against the use of force is use scogin and and some of these um ideas also uh
infiltrate into IHL and for instance States cannot require um PWS prisoners of War to renounce their protection or to join their own forces uh the same goes for civilians a state canot actually forcibly recruit civilians of the other State and they cannot even um ask them to volunteer to to serve on the forces of the other party this is actually a case which was discussed by the Israeli Supreme Court in 2005 a case which uh had to do with a certain strategy that the Israeli military applied which is called an early warning uh procedure uh
but often colloquially referred to as the neighbor procedure uh so so the what the Israeli military did in the West Bank during those years was to under to uh to to basically execute um uh military raids detain to uh detain uh detain uh um Palestinian militants and during those raids they would sometimes um invite so to speak um civilians who were living in proximity to the object of the raid and asking them to basically before the military breaks in into a house in which a militant actually Sur is sieged uh would not knock on the
door and ask ask the milit the militant to surrender himself try to persuade him or her to to to surrender so that there would be no need to to use violence in order to diffuse the situation uh and there was a question about the legality of this practice of actually uh inviting um uninvolved civilians to basically enter into an operational scene and try to negotiate with a with a militant uh this became even more heated after there was one famous incident where Palestinian uh neighbors uh was actually killed by the mil accidentally or not accidentally
by the militant who he came to um this to to to dissuade from uh continuing um uh continuing the situation um and asking him to surrender himself uh the Israeli Supreme Court actually suggested that the the practice is held that the practice is illegal and suggested that it would really violate the the prohibition on uh um on recruiting enemy civilians and they basically said that even the fact that those enemy civilians are volunteering to serve are volunteering to assist the military that would not suffice under the specific principles of IHL so you cannot actually ask
someone to uh surrender use kogan's Norms the third and last principle I want to mention in this context is the duty to prosecute perpetrators of grave breaches and other serious violations um IHL uh normally applies in an interstate context so every state is required to uh enforce uh through military discipline and military law and its own criminal law the provisions of IHL uh so this is generally true for most Norms of IHL still the the main treaties such as the Geneva conventions of 1949 and the additional protocol um the first additional protocol of 1977 also
introduced with regard to very fundamental Norms of IHL uh a system which is called the grave Brides or other other serious violations regime which requires states to basically um not only criminalize those acts when they involve their own soldiers but also to basically apply what is referred to and we'll talk about this in the unit on international criminal law Universal jurisdiction to uh detain uh and process cute any individual who is found within their territory and has committed a serious violation of IHL which qualifies as a grave breach or other serious violation so that could
be um deliberately killing civilians uh it could involve deporting civilians it could involve um the use of disproportionate Force Under the additional protocol and uh also in the case and we'll talk about this in the Israeli context uh under the the additional protocol which Israel has not accepted it also involves the transfer of population into occupied territories so the idea here is that you have um those Norms are considered not only applicable between the parties but are there are somewhat International norms and every state in the world has a vested right some and actually um
treaty based obligation to uh apply these norms and to enforce these Norms against anyone in their territory which had violated them so these basic Norms what who did they protect we've already mentioned this but for the sake of completion uh the basic Norms of IHL the the main targets of protection would be civilians uh with in respect of which the Fourth Geneva Convention is mostly concerned uh they cannot be targeted they cannot be uh incarcerated they cannot be uh harmed they cannot be tortured Etc not subject to Collective punishment uh there are the persons who
are deprived of their Liberty uh they could be PWS under the third Geneva Convention but they could also be civilians Who present a security threat to the uh to the Hostile power be that an occupying power or uh the state in whose territory they are currently present uh these individuals could be detained under even under what is called administrative detention so the Geneva conventions are um quite flexible in in providing the the state in question the the the Hostile state with some uh with some broad security mandates but their rights have to be uh preserved
for instance they can only be detained each time for six months and that could be uh extended and there have to be some um uh due process guarantees which are offered to them uh then there is a third category of persons which are injured persons and this is a category of uh of individual uals which includes soldiers uh it includes Sailors it includes also civilians which are protected by the first and second Geneva conventions as well as the first um and second additional protocol and then there are other categories of persons which we do not
have time to discuss such as Medics such as religious uh religious uh chaplain uh journalist and such that enjoy specific protection under specific rules of IHL so to conclude uh IHL uh represents a very ambitious project of trying to introduce within the very chaotic and very violent conditions of uh of war and armed conflict um legal rules of restraint that reflect uh moral principles but also uh reflect to some extent the mutual interests of states in containing the amount of violence and collateral harm uh are they effective the the common wisdom is that they have
been effective only to a limited degree in certain contexts uh partly because uh during armed conflicts uh tensions rise High emotions rise High uh traditional low and Order uh Frameworks loosen up uh and we have seen in many conflicts uh soldiers uh violating uh Norms sometimes with impunity sometimes uh with more um uh determined enforcement by their states but certainly this is an area of law where violations continue to occur and what makes this uh this uh a more difficult uh problem is first the weak the relative weakness of the enforcement Machinery IHL is um
is largely self- enforced by States and that in many contexts is the to amount to allowing the cats to guard the cream uh and in other context where there is international enforcement through international criminal law there are practical problems of gaining custody over enemy soldiers or over leaders of foreign countries and that often does not work as well as intended and then there is the unique problem which we mentioned of asymmetric conflicts of many conflicts in fact most conflicts at this day and age involving non-state actors with very limited knowledge about the law very limited
understanding of the law very limited internalization of the law and once you're in a conflict where when one party is not following the rules although reciprocity strictly speaking is not applicable in Practical terms the incentive of the other for the other party to uphold each and every uh obligation it has to the letter uh radically uh decreases therefore we we are within an area where still uh there is still much work to be done in order to uphold these basic principles that uh that really uh Drive the law to uh reduce suffering and harm thank
you for your attention
