INTERNATIONAL HUMANITARIAN LAW (IHL) lulu

International Humanitarian law is law governing the actual conduct of armed conflict/ hostilities once
it has broken out. This is known as the jus in bello. [law during war] IHL governs the treatment of the
victims to armed conflict and includes the limits within which the force required to overpower the
enemy may be used.

 IHL protect persons:

- who do not take part in hostilities:
civilians, medical personnel, worker, those who can no longer fight
- who can no longer fight:
wounded, sick, shipwrecked troops
 Primary purpose: To limit & prevent human suffering in times of armed conflict.
 Basic reason: At least some warfare should be made subject to certain humanitarian
restrictions even though we could not fully prevent war. This is so because without IHL, there
will be no limitations or bounds and thus no differences between human beings and animals.
SOURCES OF IHL
Customary IHL:
The reliance on the customary IHL is particularly important where one/ more States involved in the
conflict is not a party to a pertinent convention. For example, the Award of the Eritrea-Ethiopia Claims
Commission: since Eritrea was not a party to the four Geneva Convention of 1949, the applicable law
for relevant claims was customary IHL.
The application of customary IHL can be seen through the Martens clause in Article 1(2) of the AP I
1977: In situations not covered by the Protocol or existing conventions, civilians and combatants remain under
the protection and authority of the principles of international law derived from custom, principles of humanity,
and dictates of public conscience.

Treaty law:
The 1868 St. Petersburg Declaration proclaims the Preamble that “the progress of civilisation should
have the effect of alleviating as much as possible the calamities of war.” This led to 3 series of treaties.
(1) Hague law - primarily deals with restrictions of means and methods of warfare / the conduct of
hostilities. (2) Geneva law - concerned with the protection of victims of armed conflict. Nevertheless,
the distinction is not entirely accurate because there are numbers of Hague Conventions which falls
into the Geneva Conventions. This distinction become outdated upon the adoption of AP 1 - the
Hague law and Geneva law become closely interrelated that they are considered to hv gradually
formed one single complex system, known today as international humanitarian law.

 4 Geneva Conventions for the Protection of War Victims 1949:

a. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (GC I)
b. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (GC II)
c. Geneva Convention Relative to the Treatment of Prisoners of War (GC III)
d. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV)

 2 Additional Protocol 1977 - to cater more complex situations of armed conflicts

a. Protocol Additional to the Geneva Convention and Relating to the Protection of Victims of
International Armed Conflicts (AP I)
b. Protocol Additional to the Geneva Convention and Relating to the Protection of Victims of
Non-International Armed Conflicts (AP II)
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 Other treaties of IHL

a. 1952 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating Poisonous, or
Other Gases, and of Bacteriological Methods of Warfare
b. 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed
Conflict
c. 1980 Geneva Convention on Prohibitions or Restrictions of the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious/ to Have
Discriminate Effects.

INTERNATIONAL & NON-INTERNATIONAL ARMED CONFLICTS

International Armed Conflicts Non-International Armed Conflicts

This is also known as an inter-State armed conflicts. As
generally agreed in the common Article 2 of the Geneva
Conventions, international armed conflict exists where
force is directed between each other irrespective of
duration and intensity.
The 2nd part of the Article 2 of 1949 GC IV stated that
so long as the occupation exists, it still constitutes of
international armed conflicts. Therefore, the 4 GC, laws
& customs of war are applicable.
The common Article 3 of the states that a
non-international armed conflict is an
armed conflict occurring in the territory of
a State (civil war).
It exists whenever there is protracted
armed violence between governmental
authorities and organised armed groups,
or between such groups within a State.
(Prosecutor v Dusko Tadic)

In some circumstances, and internal armed conflicts
can be transformed into an international armed conflict.
For instance, the Tadic Jurisdiction Decision, it was
held that such situations may occurred if:
(i) Another State intervenes in that conflict
through its troops
(ii) Some of the participants in the internal
armed conflict oct on behalf of other State
It is worth noting that Article 8(d) of the
Rome Statute - Situations of internal
disturbances, such as riots, isolated and
sporadic acts of violence do not amount
to a non-international armed conflict

The AP 1 have extended the meaning of international

armed conflicts to include national liberation
movements as in Article 1(4) of AP1.

IHL IHRL
Protects persons & property that are/ may Provides for fundamental rights of
be affected by an armed conflict & limits the individuals as against their own
What rights of the parties to an armed conflict government. Human rights are inherent
using methods & means of warfare of their entitlements which belongs to every
choice. person as a consequence of being human.
Applicable only in times of armed conflict, Applies at all times (peacetime & armed
whether international or non-international. conflicts). Some IHRL treaties permit govt
When (During war) No derogations from its to derogate from certain rights in situation
provisions is permitted. of public emergency threatening the life of
the nation (x applicable during war).
However, some law are never derogable.
Binds all parties to an armed conflict. It lays Binds govt in their relations with
down the rules that are applicable to both individuals.
Who States and non-States actors.
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International Ac - on all the States

Internal Ac - govt & group opposing govt/
among themselves
Imposes obligations on individual. They
Indivi- may be held liable for grave breaches such
dual as “grave breaches” (war crimes) -
also? universal jurisdiction. Individual could be
held accountable for war crimes in non-
international AC in the International
Criminal Court.
No specific duties under IHRL treaties.
However, they have criminal responsibility
for violations that may constitute
international crimes. I.e. genocide, crimes
against humanity & torture - universal
jurisdiction.

BASIC PRINCIPLES OF IHL

1. Military necessity & humanity
‘

2. Principle of Distinction
The foundation of this principle can be traced back to the preamble to the St. Petersburg Declaration
that “war is waged against the enemy’s armed forces, not against its civilian population. Attacks are
to be directed at military targets, not at civilian objects”.
According to Article 48 of the AP 1: the parties to the conflict shall always distinguish between the
civilian population & combatants and between civilian objects & military objects. They shall direct their
operations only against the military objects.
Combatants Civilians
Article 43 of AP1: Article 50(1) of AP1:
Any member of the armed forces of a party to Persons who do not belongs to the category of
the conflict. combatants, prisoners of war, and armed forces.

Only combatants are permitted to take direct Civilians may not take direct part in hostilities
part in hostilities and in doing so, they may be and thus are entitled for civilian immunity/
attacked. protected from the attack. (Article 51(2)(3)).

Prosecutor v Tihomir Blaskic defined civilians as

- Persons who are not, or no longer members of
the armed force.

Military targets Civilian objects

Article 52(2) of AP 1: 2 criteria Article 52(3) of AP 1
(i) By “nature, location, purpose of use”, it
must make an effective contribution
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(ii) Its destruction, capture or neutralisation Objects normally dedicated to civilian purposes,
must offer a concrete and definite military such as place of worship, a house, a school.
advantage. (General protection under Article 52(1))

Civilian objects become military objectives if it

can be established that it is being used to make
an effective contribution to military action. In the
event of doubt, it shall be presumed to be a
civilian object

3. Principle of Proportionality
This principle attempted to balance the conflicting concepts of military necessity & humanity to reduce
the “incident or collateral damage” caused by military operations.
A. An attack is prohibited because it is indiscriminate.
Article 51(5)(b) - “an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilians objects, or combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated.”
- Attacks resulting in harm towards civilians (collateral damage) must not be excessive as
against the military advantage.
- Parties are prohibited from causing excessive collateral damage
The Israeli Strike against Hamas Leader Salah Shehadeh: An Israeli fighter plane that
dropped a one-ton bomb to kill Shehadeh, also killed 14 bystanders, nine of whom were
children, and injured more than 70 others. Although the bomb landed with precision, the attack
caused tremendous destruction (excessive collateral damage).
The Public Committee against Torture in Israel v The Government of Israel: The attack
must be directed against a military objective with means which are not disproportionate but
are suited to destroying only that objective.

B. In an almost identical language, in the Article dealing with precautions in attack. Article 57(2)
- Commanders are required to cancel attacks if they may be expected to offend the
proportionality principle.
- To ensure that civilian lives and civilian objects are spared from harm and destruction,
precautionary measures must be taken before an attack is launched

4. Principle of Humanity
All humans are deemed to have the capacity and ability to show respect and care for everyone, even
their enemies. Although harm is allowed in an armed conflict, the principle seeks to limit the harm
inflicted to human beings & things. The principle of humanity is the core of IHL (inspired the
establishment of ICRC), which is also upheld by all the other principles of IHL.
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5. Principle of Non-Discrimination
IHL Prohibits unlawful distinctions based on race, nationality, religious belief or political opinion in the
treatment of prisoners of war, civilians and hors de combat. Therefore, all protected persons are to
be treated with the same consideration by parties to the conflict. Each person affected by the armed
conflict is entitled to his fundamental rights and guarantees, without discrimination (Article 75 of AP1).

PROTECTING THE PROTECTED PERSONS (Main functions of IHL is to protect them during AC)
Article 27 of GC IV: Protected persons shall at all times be humanely treated and protected against
acts of violence or threats.

1. Wounded, sick and shipwrecked

GC 1 - concerned with the protection of the wounded and sick in the field.
GC 2 - deals with protection afforded to the wounded, sick and those shipwrecked at sea.
AP 1 - extended the definition of wounded, sick and shipwrecked: it covers all wounded, sick and
shipwrecked persons, whether members of armed or civilians, if they refrain from hostile acts.
a. ‘Wounded’ and ‘sick’: Persons, whether military or civilian, who because of trauma, disease or other
physical or mental disorder or disability, are in need of medical assistance or care and who refrain
from an act of hostility.
- Art. 41(1) & (2)(c), AP I: A hors de combat should not be made the object of an attack. A person is
hors de combat if he is incapacitated by wounds or sickness, and is incapable of defending
himself, if he abstains from hostility.

b. ‘Shipwrecked’: Persons, whether military or civilian, who are in peril at sea or in other waters as a
result of misfortune affecting them or the vessel or aircraft carrying them, provided that they refrain
from any act of hostility.

The basic principle is the impartial rendition of medical assistance to friend and foe alike based
solely upon urgency of medical need. In Article 12 of GV 1:
Members of the armed forces who are wounded or sick shall be respected and protected at all times.
They shall be treated humanely. Any attempts upon their lives/ violence to their persons shall be strictly
to prohibited. They shall not be murdered/ exterminated, subject to torture/ biological experiments. They
shall not intentionally leave without medical assistance/ care.

2. Prisoners of war (the most vulnerable)

The basic principle is that persons who are recognised as “combatants” are entitled to be treated as
prisoners of wars upon capture by an adverse party in an armed conflict. “Prisoners of war” are
captured, surrendered or wounded soldiers that are no longer considered a threat to a party. Once a
soldier attains such status, he is automatically entitled to extensive protection and is prohibited from
being attacked.
Article 13 of the GC 3 states the basic standard of treatment of prisoners of war: “prisoners of war
must at all times be humanely treated”. It is considered as a serious breach of the convention and
thus, prohibited, any unlawful act or omission by the detaining power causing death/ seriously
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endangering their health. Moreover, they must also at all times, be protected against acts of violence,
intimidation, insults and public curiosity. This includes act of reprisals against them.
Article 25 and 26 of GC 3: Prisoners of war must be granted an adequate amount of space within
the premise that they are kept, and to feed a sufficient amount of food.
Prisoners of war cannot be discriminated based on their sex: -
- Article 14 of GC 3: Female prisoners of war shall be granted the same treatment given to
male prisoners of war.
- Article 88 of GC 3: Women cannot be subjected to harsher or heavier punishment than men.
- Article 97 of GC 3: Female prisoners of war shall be confined in separate quarters from male
prisoner of war and will be under immediate supervision of women.
Article 109 of GC 3: Parties to the conflict are bound to send back to their own country seriously
wounded and sick prisoners of war, after taking care of them till they are fit to travel.
Article 188 of GC 3: Once the hostilities have ceased, all prisoners of war must be repatriated (send
back to their State) without delay.

3. Civilians Persons
This is the most important aspects of the regulation of armed conflict because it includes the weakest
members of the community i.e. women, children and the aged.
Article 48 of the AP 1: the parties to the conflict shall always distinguish between the civilian
population & combatants and between civilian objects & military objects. They shall direct their
operations only against the military objects.
a. Generally
Article 50(1) of AP 1: A civilian is any person who does not belong to one of the categories of
persons referred to as prisoners of wars, armed forces and combatants. In case of doubt whether
a person is a civilian, that person shall be considered a civilian.
Civilian immunity: Civilian population & individual civilians shall enjoy general protection against
dangers arising from military operations. They shall not be object/ target of the attack [Article
51(2)]. Thus, entitled for protection unless if they take a direct part in hostilities [Article 51(3)].
Art. 51(4) - Indiscriminate attacks, which either destroys all life in a specific area, or causes
excessive collateral damage, against civilians are prohibited.
Article 51(6) - Attacks against the civilian population/ civilians by way of reprisal are prohibited.
Civilians as human shield:

 Barake v Minister of Defence: Human shields are the use of protected persons under IHL
as a shield to deter attacks on combatants and military objectives.
 The use of civilians as human shield has been prohibited under Article 51(7) of AP I & Article
13(1) of AP II.
 This is in line with the precautionary measure to remove civilian population from the vicinity of
military objective [Art. 58 (a) of AP I]; and to avoid locating military objectives within or near
densely populated areas [Article 58(b) of AP I].
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b. Special protection for women

 General protection: Article 27 of GC 4

Women shall be protected at all times during the period of an armed conflict.
 Fundamental guarantees: Article 75(1) of AP I
Each person is entitled to her fundamental guarantees without any adverse distinction based
on sex.
 Article 76(1) of AP I
Women shall be granted special respect, and protected especially against rape, forced
prostitution and any indecent assault.

c. Special protection for children:

 Article 77(1) of AP I:
Children shall be granted special respect and protected against any form of indecent assault.
 Article 77(2) & (3) of AP I & Article 4 of AP II:
Parties must give due care and aid to the children in need and if they are under fifteen years
old, they shall not be enlisted to take part directly or indirectly in armed forces but if they do
and are captured, they shall continue to benefit from this protection.
 Article 77(5) of AP I & Art. 6, AP II:
The imposition of death sentence against a person under the age of eighteen is prohibited.

d. Medical personnel:

 Article 24 of GC 1 & Article 15 AP 1:

Medical personnel shall at all times be respected and protected.

4. Civilian objects
The basic rule is that the civilian’s objectives shall not be the object of attack/ reprisals. Attack shall
be limited to military objectives only.
General protection - Article 52(1) of AP 1: Civilians objects are all objects which not military
objects are. It shall not be the object of an attack.
Article 52(2) of AP 1: Military objectives are limited to those objectives which by their nature,
location, purpose or use make an effective contribution to military action & whose total or partial
destruction, capture or neutralisation offers a definite military advantage.
Article 52(3) of AP 1: In doubt of whether object which is normally dedicate to civilian purposes
was used to make an effective contribution to military action, it shall be presumed no to be so
used.
a. Protection of places of worship & cultural heritage

 Article 53(1) of AP I: It is prohibited to commit any acts of hostility directed against the historic
monuments, works or art or places of worship which constitute the cultural/ spiritual heritage
of peoples.

b. Protection of objects indispensable to the survival of civilian population

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 Article 54(1) of AP 1: It is prohibited to attack, destroy, remove or render useless objects

indispensable to the survival of the civilian population. I.e. foodstuffs, agricultural areas to
produce foodstuffs, livestock, drinking water installation and supplies & irrigation works.
o for specific purpose of denying them for their sustenance value to the civilian
population/ to the adverse party, whatever the motive.
o Starvation of civilians as a method of warfare was also prohibited.
o Article 55 of GC 4: In an occupied territory, the State in control has the duty to ensure
food and medical supplies for the civilians are sufficient.

 Article 19 of GC 1: Hospitals may in no circumstances be attacked but shall always be

respected and protected by the parties to the conflict.

THE CONDUCT OF HOSTILITIES/ METHOD OF WARFARE

The purpose of armed conflict is to defeat the adverse party. Although States may employ the
necessary means to attain overall military advantage, they do not have unlimited freedom of choice
in the methods or weapons that they use.
1. Illegal weapon
The object of an armed conflict is to achieve victory over the adverse party with the least possible
expenditure of men, resources and money. The principles of humanity remain relevant. The
means of delivering even a lawful attack are restricted. [Article 22 of HC; Article 35(1) of AP 1]
Rule: It is prohibited to employ weapons, projectiles and material and methods of warfare of a
nature to cause superfluous injury/ unnecessary suffering. [Article 35(2) of AP 1 & Article 23 (e)
of HC] This includes methods which are intended/ expected to cause widespread, long-term and
severe damage to the natural environment. [Article 35(3) of AP 1]
a. Nuclear weapons

 Legality of the Threat or Use of Nuclear Weapons: World Court held that the threat/ use of
nuclear weapons is contrary to Article 2(4) of the UN Charter; Article 35(2) & (3) of AP 1; &
fails to meet all the requirements of Article 51 - hence unlawful.
 Shimoda v Japan (1964)
The use of nuclear bombs against the cities of Hiroshima and Nagasaki was held to be a
blatant violation of the international law of armed conflict.

b. Gas, chemical and bacteriological weapons

 The 1993 Chemical Weapons Convention prohibits the development, production,

stockpiling, transfer, use and destruction of chemical weapons.
 Article 1 of Chemical Weapons Convention:
Imposes upon States the obligation to never use chemical weapons under any circumstances,
either in international or non-international armed conflicts, including any production or
manufacture of such chemical weapon.
 US Assails Soviet for Reported Use of Toxin Waste: The Soviet Union was liable for using
chemical weapons that destroy human skin by cancer-causing agents, which also produced
other forms of unnecessary injury and suffering in Afghanistan.
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c. Blinding laser weapons:

 Article 1 of 1995 Protocol on Blinding Laser Weapons (to the 1980 Conventional
Weapons Convention):
Laser weapons are specifically designed to cause permanent blindness to unenhanced vision
that is to the naked eye or to the eye with corrective eyesight devices.
 Juan de Fuca Strait incident:
In 1997, US Navy lieutenant, Daly, and Canadian forces pilot, captain Barnes, sustained eye
injuries aboard a military helicopter during the surveillance of a Russian merchant vessel
suspected of espionage in US territorial waters. The effects of the injury were consistent with
the effects of a blinding laser.
Since the incident, the injured Daly and Barnes suffered ‘agonizing chronic pain’ and
continuous deterioration of eyesight, which led to a lawsuit being instituted against the
shipping company that was partly owned by the Russian government.
 The use of blinding laser weapons is prohibited under the Protocol and Rule 86, Customary
IHL as it is said to cause unnecessary suffering.

d. Mines and booby-traps

 The 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices (Protocol 2 to the 1980 Conventional Weapons Convention): restricts the use of
land mines, remotely delivered mines, and booby traps.
 The Protocol is applicable to both international and non-international armed conflicts, prohibits
the use of land mines, remotely delivered mines, or booby traps to kill civilians or to cause
superfluous injury or unnecessary suffering to soldiers.
 It also prohibits the use of booby traps that are attached to or associated with any of the
protected objects under IHL.
 The 1997 Anti-Personnel Mine Ban Convention prohibits the use, development, production,
stockpiling, and transfer of anti-personnel mines and requires the destruction of stockpiles
within four years for each State party.

e. Poisons and Starvation

 The use of poison is contrary to the established customary law & is embodied in Hague
Regulation 23(a).
 The use of starvation as a weapon against the civilian population is forbidden under Article
54(1) of AP 1.

f. Incendiary weapons
 The 1980 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons
(to the 1980 Conventional Weapons Convention) prohibits the aerial delivery (throwing it
from a great distance above), in relation to the conduct of hostilities during armed conflict, of
incendiary weapons within a concentration of civilians.
 The weapon or munition must be ‘primarily designed’ to act through flame and/or heat (e.g.
flame throwers)
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NON-INTERNATIONAL ARMED CONFLICT (Civil war & internal armed conflict)

There was much debate on whether IHL shall be applicable to non-international armed conflicts. This
could create to problem on the ground of contravening the principle of non-intervention in the domestic
affairs of sovereign States. Hence, it is not surprising that there is only one provision applicable to
non-international armed conflict in the 4 GC: the common Article 3.

 Common Article 3 of the GC: In case where armed conflict is not of an international
character, each party to the conflict shall be bound to apply, as minimum, …:
(1) Persons taking no active part in the hostilities (including members or armed forces
who hv laid down their arms & those hors de combat by sickness, wounds, detention or
others) shall in all circumstances be humanely treated & is protected from:
o Violence to life and person, murder of all kinds, mutilation, cruel treatment and torture.
o Taking of hostages.
o Outrages upon personal dignity, humiliating or degrading treatment.
o etc the list goes on.
(2) The wounded & the sick shall be collected & cared for. (International Committee of
Red Cross may offer its services)

# This Article binds the State party, rebels and non-State parties.
For Common Article 3 to be applicable, an armed conflict must be established. As in La Tablada
case: The concept of armed conflict requires the existence of organized armed groups that are
capable of and actually do engage in combat and other military actions against each other.
Common Article 3 is generally understood to be applied to low intensity and open armed
confrontations between relatively organized armed forces or groups that take place within the
territory of a particular State. It typically involves armed strife between governmental armed forces
and organized armed insurgents.
The application of Common Article 3 does not require the existence of large-scale and generalized
hostilities or a situation comparable to a civil war in which dissident armed groups exercise control
over parts of national territory.

 Additional Protocol 2 is intended to supplement the common Article 3, which it extends the
provisions for non-international armed conflicts.

- Article 1 of AP 2:
(1) States that AP2 shall be applied to all armed conflicts not covered by AP1.
(2) Shall not apply to situations of internal disturbances & tensions. I.e. riots, isolated and
sporadic acts of violence & others act which is similar in nature, as being not similar to
armed conflicts.
o Riots, all disturbances which from the start are not directed by a leader and have
no concerted intent.
o Isolated and sporadic acts of violence, as distinct from military operations carried
out by armed forces or organized armed groups.
o Other acts of a similar nature which incur, in particular, mass arrests of persons
because of their behaviour or political opinion

- To be applicable:
1. Parties to the conflict:
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An internal armed conflict must have taken place within the territory of the State involving
hostilities between armed forces of a contracting party & dissident armed forces, or other
organised armed groups.
2. Responsible command:
It is required for some de facto authority sufficient both to plan & carry our concreted &
sustained military operations & to impose the discipline required for the rules of the
Protocol to be applied.
3. Control over a part of territory:
A control over a part of territory which is sufficient in extent to enable them to carry out
“sustained & concreted military operations”.
4. Willing and able to implement the Protocol

 La Tablada case:
The case concerned an attack launched by 42 armed persons on military barracks of the
national armed forces in 1989 at La Tablada, Argentina. The attack resulted in a battle lasting
approximately 30 hours and resulting in the deaths of 29 of the attackers and several State
agents.
o The inter-American Commission on Human Rights held:
The violent acts which occurred at the La Tablada military cannot be characterized as
a situation of internal disturbances. The concerted nature of the hostile acts undertaken
by the attackers, the direct involvement of governmental armed forces, and the nature
and level of the violence present at the events at the La Tablada base, particularly, the
careful planning, coordination and execution of an armed attack by the attackers
against the military base constituted an internal armed conflict, to which IHL could be
directly applied

From Marina notes:

Tensions and disturbances (Domestic law & IHR law) - An armed conflict falling short of
a civil war (Common Article 3, domestic law, IHR law) - High intensity civil war (AP II) -
The civil war no longer remains an internal armed conflict when it turns into a conflict
involving national liberalisation movements: Armed conflicts in which people are fighting
for their right to self-determination against colonial domination, alien occupation, and
racist regimes (Art. 1(4), AP I)

PROSECUTION AT THE INTERNATIONAL CRIMINAL COURT (ICC) (Rome Statute)

Article 15(1) - Proprio motu power of the ICC Prosecutor: The Prosecutor may decide to initiate an
investigation into a situation without referral to the UNSC or a State party.

 Article 15(2) - In conducting a preliminary investigation, he may request information from UN

organs, States, NGOs and other reliable sources to aid this process.
 Article 15(3) - Only after he has analysed the seriousness of the information and concluded
that there is a reasonable basis to commence an investigation, can a request be made to the
Pre-Trial Chamber to launch an investigation.
 The applicable standard that the Prosecutor must meet is that of a reasonable basis under
Article 15(4).
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 Information presented to the Chamber need not be conclusive, or eliminate all other possible
interpretations of the information, but the Chamber must be satisfied that a reasonable
justification exists for the belief that a crime within the ICC’s jurisdiction is being or has been
committed.

Article 8(2): Defines “war crimes” as:

 Grave breaches of the Geneva Conventions.

 Other serious violations of the laws and customs applicable in an international armed conflict
 Serious violations of Common Article 3 (in the case of a non-international armed conflict).
 Other serious violations of the laws and customs applicable in a non-international armed
conflict.

Individual criminal responsibility:

 Nuremberg Tribunal:
The purpose of international law is to combat international crimes and it is not artificial entities
like the State or organization that breaches the law, but it is the individual working behind
them. Only by punishing individuals who commit such crimes can the provisions of
international law be enforced.

 Article 27:
The Statute applies equally to all persons without distinction based on their official capacity. A
Head of State or Government shall not be exempted from criminal responsibility under the
Statute.

Arrest warrant against Sudanese President Omar al-Bashir:

The Sudanese President was issued an arrest warrant for masterminding a campaign of
crimes against humanity and war crimes by government troops and Arab militias in the Darfur
region.

The ICC Pre-Trial Chamber I held: al-Bashir’s official capacity as a sitting Head of State does
not exclude his criminal responsibility, nor does it grant him immunity against prosecution
before the ICC.

Thus, any person found to be criminally responsible for the commission of war crimes can be
prosecuted under the Statute.

 Article 25(3):
A person shall be criminally responsible and liable for punishment for a crime if he:
o Commits a crime, individually or jointly, with or through another person.
o Orders, solicits or induces the commission of such a crime.
o Aids, abets or assists in the commission of the crime.
o Contributes in any way to the commission of the crime.
o In regard to genocide; directly and publicly incites others to commit genocide.
o Attempts to commit the crime by taking an action that commences its execution

 Prosecutor v Dusko Tadic:

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The accused was convicted by the ICTY of grave breaches of the Geneva Conventions and
crimes against humanity related to the torture and murder of Muslims in Bosnia and
Herzegovina.

 Article 30:
A person shall be criminally responsible and liable for punishment for a crime only if it was
committed with intent and knowledge of the effect of the harm that it will cause.

Superior Responsibility:

 Article 28(b):
A superior shall be criminally responsible for crimes committed by subordinates under his
effective control where:
o He knew or consciously disregarded information that his subordinates were committing
or about to commit such crimes.
o The crimes concerned activities within his effective command and control.
o He failed to take all the necessary and reasonable measures to prevent the
commission of the crime, or to submit the matter to competent authorities

 Nuremberg Tribunal in United States of America v Wilhelm List and Others:

A superior cannot absolve his liability simply by saying that he did not have knowledge of is
subordinates’ actions, as a superior is accountable for all conduct within his territorial
jurisdiction.

The accused were charged for the murder of civilians in Greece, Yugoslavia, Norway, and
Albania between 1939 and 1945 by the use of troops of the German armed forces under the
command of and acting pursuant to orders issued, distributed, and executed by the first
accused.

State Responsibility:

 The ICC can only be used to charge private persons and not a State, as a State cannot be
criminally responsible.
 However, violations of IHL entail the international responsibility of a State.
o Article 91 of AP 1 - imposes the payment of compensation by a State responsible for
acts committed by persons in its armed forces.
o Japan’s Second World War Rape case: Japan was obligated to pay compensation
to Korea for raping captured Korean women and making them “comfort women” during
the World War.