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International Humanitarian Law

Lecture #1 - Definition Purpose & Scope

Why Humanitarian Law?

Definition?

The relationship between IHL & Intl HR Law?

"International humanitarian law comprises all those rules of international law which are designed to regulate the treatment of the individual civilian or military, wounded or active, in international

armed conflicts." (Fleck, p. 11)

"Lex specialis"

“War is distinguishable from murder and massacre only when restrictions are established on the reach of battle.” The idea of war as indiscriminate violence ... is antithetical to the fact that war is a goal-oriented activity directed to attaining political objectives. Even the view that all necessary means to achieving victory are permissible – a short step away from “all’s fair in love and war” – implicitly recognizes that hostilities are limited to the means considered “necessary,”

(Solis, p. 7)

complementarity

ICJ, Nuclear Weapons case, par. 25:

"Reciprocity"

Additional Protocol I, art 75(4):

"The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities

"A significant development in the law is that, whereas the older treaties applied only in a 'war', today humanitarian law is applicable in any international armed conflict, even if the parties to that conflict have not declared war and do not recognize that they are in a formal state of war." (Fleck, p. 11)

"moderating conflict"

"No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following: ..."

not "war" .... what's the difference?

war on terror, war on drugs, etc

standard of "fair trial" based on IHRL

e.g. Iwo Jima... Genocide Rwanda

John Lumbantobing

S.H. (Unpar), LL.M. (Cantab), ACIArb.

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