CONTEMPORARY

CHALLENGES IN
IHL
AS 30906 International Humanitarian Law, Sem 2/2015
Dr. Ayesah Uy Abubakar
Lecture for 17 November 2016

Direct participation in hostilities

Explosive weapons in populated areas
Multinational forces
New technologies and IHL
Occupation
Privatization of war
Respect for IHL
Security detention
Terrorism

EXPLOSIVE WEAPONS IN
POPULATED AREAS
WATCH THE VIDEO: Increasingly, explosive weapons designed for warfare

on open battlefields are being used in towns and cities. The effects on
civilians are often devastating, even when these weapons are aimed at
legitimate military targets.

https://www.icrc.org/en/explosive-weapons-populated-areas

MULTINATIONAL FORCES
Over the years, the spectrum of multinational forces operations most of the time

under UN mandate for peace-enforcement or peacekeeping purposes has become

increasingly broad. The multifaceted nature of these operations, the emerging
concept of integrated missions and the ever more difficult and violent environments
in which these forces operate have highlighted how important it is to identify the
legal framework applicable to these situations.

It has always been the ICRC's view that multinational forces must observe IHL when

conditions for its applicability are met. The nature of the situation in which
multinational forces evolve and the correlative assessment of IHL applicability must
be determined solely on the basis of the facts on the ground, irrespective of the
formal mandate assigned to the peace operations by the Security Council and
irrespective of the label given to the parties potentially opposed to peace forces. The
mandate and the legitimacy of the mission entrusted to the peace forces are issues
ofjus ad bellum and have no bearing on the applicability of IHL to those operations.

NEW TECHNOLOGIES AND

IHL
Science cannot be placed above its
consequences
Cyber conflict and IHL
Cyber warfare and iCloud
Armed drones
Remote weapon sytems
Nanotechnology
Non lethal weapons

NANOTECHNOLOGY
Engineered nanomaterials (ENMs) and nanoparticles (ENPs) possess unique

characteristics such as flame-retardation, dirt-resistance, increased

electrical conductivity, and improved hardness and strength with reduced
weight, which have proven to be popular for applications in a wide range of
commercially marketed products.

At the same time, however, concerns have been raised about potential

toxicity for human health and biological and environmental systems.

While no conclusive toxicity profile for engineered nanomaterials and

nanoparticles is yet available, there is already compelling scientific

evidence of human and environmental toxicity in relation to certain ENMs
and ENPs.

NANOTECHNOLOGY
The relevance of nanotechnology to the military resides particularly in its

application to enhance military capabilities including:

soldier survivability (for example, lighter, stronger, and heat-resistant armour and

clothing);
force protection (for example, enhanced camouflaging,
undetectable coating of aircrafts,
explosive detectors,21 bio/chemical sensors22);
force mobility (for example, miniaturization of communication devices,
increased energy generation and storage capacity
penetration capability (for example, nano-energetic explosives,
armourpiercing projectiles coated with a nano-material
focused force application (for example, nano air vehicles, self-guiding bullets

ARTICLE 35, 36 OF
ADDITIONAL PROTOCOL I,
It is prohibited to employ methods or means of warfare which are intended,

or may be expected, to cause widespread, long term and severe damage to

the natural environment

In the study, development, acquisition or adoption of a new weapon,

means or method of warfare, a High Contracting Party is under obligation

to determine whether its employment would, in some circumstances, be
prohibited by this Protocol or by any other rule of international law
applicable to the High Contracting Party.

NON-LETHAL WEAPONS
Non-lethal weapons are those weapons that are designed to incapacitate

rather than to kill.

The weapons use a variety of different deployment methodologies including

using kinetic, acoustic, directed energies, and/or a combination of these. For

example, the Directed Energy Active Denial System fires a 95 GHz-2
millimetre-wave directed energy that rapidly heats a persons skin to achieve
a pain threshold without burning the skin.

Anti-riot water cannons, some models of which can knock a person down from

around 90 metres. These cannons can also be laced with dyes or tear gas.

Net launchers, which are a non-lethal way to restrain and control a fleeing or

aggressive suspect, are another type of non-lethal weapon. The net can be
deployed by a handheld launcher and is therefore small enough to be used
while in pursuit of a fleeing suspect.

ARTICLE 48 OF ADDITIONAL
PROTOCOL I,
In order to ensure respect for and protection of the civilian population and

civilian objects, the Parties to the conflict shall at all times distinguish
between the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their operations
only against military objectives.

The principle of proportionality notes that it is prohibited to launch an

attack that may be expected to cause incidental loss of civilian life, injury
to civilians, or damage to civilian property that would be excessive in
relation to the concrete and direct military advantage anticipated.

Applicable to both IAC and NIAC

DIRECT PARTICIPATION IN
HOSTILITIES
A clear distinction between armed forces and civilians is a key element of

IHL. In contemporary conflict, however, the proximity of civilians to military

operations and their increased assumption of military functions lead to
confusion regarding the principle of distinction.

The ICRC believes three key questions need clarification: (1) Who is

considered a civilian for the purposes of conducting hostilities? (2) What

conduct amounts to direct participation in hostilities? (3) What are the
precise modalities according to which civilians directly participating in
hostilities lose their protection against direct attack?

DIRECT PARTICIPATION IN
HOSTILITIES
In 2009, after six years of discussions and research, the ICRC published the

document entitled "Interpretive Guidance on the Notion of Direct

Participation in Hostilities under IHL" as well as all documents produced
during the proceedings of the expert process.

Treaty Law
Article 3 common to the four Geneva Conventions, 1949
Protocol I additional to the Geneva Conventions, 1977 art. 51
Protocol II additional to the Geneva Conventions, 1977 art. 13

OCCUPATION
Under IHL, there is occupation when a State exercises an unconsented-to

effective control over a territory on which it has no sovereign title. Article

42 of The Hague Regulations of 1907 defines occupation as follows:
Territory is considered occupied when it is actually placed under the
authority of the hostile army. The occupation extends only to the territory
where such authority has been established and can be exercised.

Occupation law - as a branch of IHL - regulates the partial or total

occupation of a territory by a hostile army. Provisions regulating occupation

can be found in The Hague Regulations of 1907, the Fourth Geneva
Convention of 1949 and Additional Protocol I of 1977.

OCCUPATION
Under occupation law, the occupying power does not acquire sovereignty

over the occupied territory and is required to respect the existing laws and
institutions of the occupied territory as far as possible. It is presumed that
occupation will be temporary and that the occupying power shall preserve
the status quo ante in the occupied territory.

OCCUPATION

In general terms, occupation law endeavours to strike a balance

between the security needs of the occupying power on the one

hand, and the interests of the ousted power and the local
population on the other. It aims to ensure the protection and
welfare of the civilians living in occupied territories.

The occupying power's responsibilities include inter alia the

obligation to ensure humane treatment of the local population

and to meet their needs, the respect of private properties,
management of public properties, the functioning of educational
establishments, ensuring the existence and functioning of
medical services, allowing relief operations to take place as well
as allowing impartial humanitarian organizations such as the ICRC
to carry out their activities.

In return, and in order to fulfil those important responsibilities

while ensuring its own security, the occupying power is granted

important rights and powers, which may also take the form of

PRIVATIZATION OF WAR
In recent years, parties to armed conflicts have increasingly recruited

private military and security companies (PMSCs) to undertake tasks

traditionally carried out by the armed forces. The involvement of these
companies in or close to military operations has raised questions about the
way international humanitarian law (IHL) should be applied.

(Private armies) Their activities include protecting military personnel and

assets, training and advising armed forces, maintaining weapons systems,

interrogating detainees and, on occasions, even fighting.

PRIVATIZATION OF WAR
The majority of employees of PMSCs fall within the category of civilians, as

defined by IHL. In both international armed conflicts and non-international

armed conflicts their position is covered, and their protection assured, by
the Fourth Geneva Convention, the Additional Protocols of 1977 and
customary law. However, if they participate directly in hostilities, they lose
the protection from attack afforded to them as civilians in both types of
conflict.

RESPECT FOR IHL

All States and other parties to an armed conflict have an obligation to respect

and ensure respect for international humanitarian law (IHL) in all

circumstances. They must use their influence to prevent and end violations of
IHL, and refrain from encouraging violations by other parties.

The problem of preserving human life and dignity in these situations does not

come from a lack of rules governing warfare, but from a failure to respect
those rules.

For this reason, the ICRC works constantly to secure greater compliance with

the law starting with the primary obligation on all Sates and other parties to an
armed conflict under article 1 of the Geneva Conventions to respect and
ensure respect for IHL.

RESPECT FOR IHL

These points were strongly reaffirmed in a resolution prepared by the ICRC and

adopted by the 30thInternational Conference of the Red Cross and Red

Crescent in November 2007.

The resolution reasserted the obligation of States to adopt all legislative,

regulatory and practical measure to incorporate IHL into domestic law and
practice. Proper training of those required to enforce IHL is also essential. The
ICRC supports States in these efforts.

The ICRC is also pressing States to end impunity, which serves neither justice

nor reconciliation after a conflict. States need to create a domestic legal

framework for the investigation and prosecution of war crimes and for the
extradition of suspects. Such frameworks need to include effective sanctions
against wrongdoers, which act as a deterrent, and appropriate compensation
for victims.

SECURITY DETENTION
Deprivation of liberty for security reasons is an exceptional measure of

control that may be taken in armed conflict. The administrative detention

of persons believed to represent a threat to State security is also being
more and more widely practiced outside of armed conflicts. In both
situations, there is insufficient due process protection of the rights of
persons affected.

1.Is there a similar Jus ad bellum and jus in bello concept is Islamic Law?
2.Which Surah in the Quran says, and fight in the way of God those who fight against you but do not transgress; indeed God does

not like transgressors. This Surah shows that while Muslims are provided with reasons to go to war, they are also given the rules
under which their means and methods in the conduct of hostilities are also regulated under humanitarian considerations.
3.What type of weapon is prohibited in Islamic law as part of the Prophets tradition of protecting human life? The prohibition of this
weapon is similar to what is stated in the Protocol III of Certain Conventional Weapons.
4. Why were some Muslim jurists do not agree with the use of poison-tipped arrowsto be used in warfare? Because the same can be
done to Muslims.
5.Under which Additional Protocol prohibits the attack, destruction or removal of objects that are important to the survival of the
civilian population such as, drinking water for the purpose of denying them sustenance or food?
6.The _________________of body of an enemy is prohibited under Islamic Law. This prohibition came after the battle of Uhud when the
Prophet saw the bodies of many Muslims including his uncle, in this terrible situation.
7.What is the name of the Third Caliph who gave this prohibition to his army during his war with Mu-awiyah? f you defeat them, do
not kills a man in fights, do not finish off a wounded man, do not uncover a pudendum, or mutilate the dead, do not rip open a
curtain or enter a house without permission, do not take away any of their property, and do not torture or harm their women even
though they may insult your leaders.
8.At what age is a child allowed to join a Muslim army?
9.According to the Maliki jurists, can women and children be attacked by Muslim soldiers?
10.
Islamic law also prohibits acts of hostility towards historic monuments, works of art or place of worship similar to what is stated in
which Additional Protocol No and Article No?

STRENGTHENING IHL
AS 30906 International Humanitarian Law, Sem 2/2015
Dr. Ayesah Uy Abubakar
Lecture for 17 November 2016

STRENGTHENING LEGAL
PROTECTION FOR VICTIMS
OF ARMED CONFLICT

Detention track: The protection of persons deprived of their liberty

in relation to non-international armed conflict (NIAC)

The detention track seeks to identify options for strengthening IHL regarding
the deprivation of liberty of persons in relation to NIAC. Compared to the
detailed body of treaty law regarding detention in relation to international
armed conflict (IAC), the treaty law regarding detention in relation to NIAC is
very limited.
Compliance track: Mechanisms for strengthening compliance with

IHL

The compliance track seeks to identify options for improving overall

compliance with IHL, by both States and non-State armed groups. Many
rules of IHL continue to be violated daily. IHL lacks strong and effective

 See the Concluding Report done recently in December 8-10, 2015 in

Geneva.

IHL & ISLAM

AS 30906 International Humanitarian Law, Sem 2/2015
Dr. Ayesah Uy Abubakar
Lecture for 29 November 2016

ISLAM
1. War must be just and that its means must
follow Islamic humanitarian principles;
2. Surah Al-Bakara
and fight in the way of God those who fights
against you but do not transgress; indeed God
does not like transgressors
3. Means and methods of warfare:

IHL
1. Jus ad bellum (law to war), jus in bello
(ihl)
2. Protection of civilians and hors de
combat

- use of fire is prohibited

- poison tipped arrows
-weapons of mass destruction (one group of
scholars disallowed it , while another allows it if
the same is being used against Muslims, while
the third opinion is extreme that it does allow it)

3. Protocol III of Certain Conventional

Weapons

ISLAM
4. Protection of civilian such as cutting of water
supply and facilities important to their survival

IHL
4. Additional Protocol 1
5. Common Article 3

5. Mutilation of bodies is prohibited.

6. There are varying views on the treatment of
women and children. But the Maliki jurists
maintains that women and children are absolutely
protected from any attacks from the soldiers.
7. Protection of civilian objects, (Caliph Abu Bakr)
8. Children under the age of 15 years old were not
accepted as male volunteers during the Battles of
Badr and Uhud.

6. Women are protected but they lose

this protection once they are hors de
combat
7. Additional Protocol 1, Art. 52
8. Protocol 1 states that children under
the age of 15 cannot take part in
hostilities.