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When is IHL a useful tool?

When is IHL a useful tool?

An interactive tool to understand how international humanitarian law can be used for effective protection.

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Understanding when international humanitarian law is most powerful.

This tool is intended to support everyone engaged in humanitarian advocacy to understand better when international humanitarian law (IHL) is most effective.

To prevent a violation, when does it make sense to refer to IHL, and when not? What should I do if an armed actor does not accept that IHL applies? How can I achieve the same protection outcomes without mentioning IHL?

This framework offers guidance to improve strategic thinking, strengthen assessments of contexts, and facilitate the planning of interventions.

Let's start

<h2>Understanding when international humanitarian law is most powerful.</h2> This tool is intended to support everyone engaged in humanitarian advocacy to understand better when international humanitarian law (IHL) is most effective. To prevent a violation, when does it make sense to refer to IHL, and when not? What should I do if an armed actor does not accept that IHL applies? How can I achieve the same protection outcomes without mentioning IHL? This framework offers guidance to improve strategic thinking, strengthen assessments of contexts, and facilitate the planning of interventions.

[[Let's start->IHL applicability]]

International humanitarian law only applies in situations of armed conflict. <h2>Is at least one of the following forms of armed conflict taking place?</h2> * International Armed Conflict: Two or more states involved in violent exchange (generally low threshold of violence required) * International Armed Conflict Occupation * Non-International Armed Conflict (CA3): High level of intense violent interactions between organised non-state armed group(s) and the territorial state or also between such non-state armed groups. * Non international Armed Conflict (AP 2): Only applies to conflicts between a state and one or more armed groups. Does not apply between armed groups.

[[

|Yes applicability]]

[[

|No applicability]]

<h2>Is the state where the armed conflict takes place party to relevant international treaties?</h2> Relevant international treaties that regulate the means and methods of warfare under international humanitarian law are, for example: * Additional Protocol II * Convention on Certain Conventional Weapons * Child Rights Convention and optional protocol on children in AC * Convention of Rights of Persons with Disabilities * Convention for the Protection of Cultural Property in the Event of Armed Conflict

[[

|Yes party to treaties]]

[[

|No party to treaties]]

International humanitarian law only applies to situations of armed conflict. If no armed conflict is taking place, international human rights law still applies. Therefore, consider relying on the provisions of human rights law, which applies at all times. Learn more about when IHL applies.

Even when a state is party to international treaties, IHL might be controversial. Attitudes within a state can differ though. For example, the military, the judiciary, and various government ministries may view IHL differently. <h2>Do actors accept that international humanitarian law applies?</h2>

[[

|Explicit provision]]

[[

|No IHL acceptability]]

If a state is not party to such treaties, customary international humanitarian law still applies. Unlike a treaty, which needs to be ratified by a state, customary law is binding on all states, even if they have not signed a particular treaty. <h2>Do the actors understand and accept that they are still bound by customary IHL?</h2>

[[

|Explicit provision]]

[[

|No customary IHL]]

<h2>Can you engage directly with an actor?</h2>

[[

|Yes direct engagement]]

[[

|No direct engagement]]

In addition to IHL, other bodies of law include provisions that can help increasing protection in situations of armed conflict, such as international human rights law. <h2>Do actors accept that human rights law applies?</h2>

[[

|Yes acceptability human rights]]

[[

|No acceptability human rights]]

International human rights law also includes provisions that can increase protection in situations of armed conflict.

If an actor neither accepts that international humanitarian law nor human rights law applies, you may highlight that certain provisions of international law have the status of ius cogens and erga omnes norms: they apply to everyone and do not allow derogation. Visit our website for more background information about ius cogens and erga omnes norms, and the principles of international law.

Sometimes direct reference to IHL is sensitive. Some actors who may be about to commit a violation, might get deterred or become defensive. <h2>Can the actor be influenced by direct reference to IHL?</h2>

[[

|Yes IHL language]]

[[

|No IHL language]]

If you do not have access to an actor, consider others who might be able to exert pressure, for example: * Local, regional, or international political actors; * Cultural figures; * Religious leaders; * Community leaders. [[Recommendations|Recommendations indirect contact]]

You are in <b>a very strong position</b>: * one or several treaties are applicable * an armed actor is accepting that international humanitarian law applies * you can engage directly * you have strong and reliable information * and the actor can be influenced if you make direct reference to IHL For specific recommendations and resources on different conflicts visit our IHL resources page.

When an armed actor does not respond to direct reference to IHL, you can still invoke other arguments that may have a higher persuading power and lead to similar outcomes. For example, you can explain that certain acts would potentially violate national laws or local customs. You can highlight that an act could have unintended consequences which undermines the actors objectives, such as triggering a health crisis. For specific recommendations and resources on different conflicts visit our IHL resources page. [[Recommendations|Recommendations no IHL language]]

If an actor does not accept or understand that customary international law is applicable, you may want to highlight that they have no choice: actors can be held accountable for violations of both treaty and customary law. If an actor does not respond to your advocacy, consider the role of others who might be able to exert pressure, such as cultural figures, religious or community leaders, or regional actors. For specific recommendations and resources on different conflicts visit our IHL resources page.

You are in <b>a strong position</b>: * one or several relevant treaties are applicable * an actor is accepting that international humanitarian law applies * you can engage directly * the actor will not respond to direct reference to IHL, but you can still assert influence. For specific recommendations and resources on different conflicts visit our IHL resources page. Download and print this assessment and the guidance note.

You are in <b>a relatively strong position</b>: * one or several relevant treaties are applicable * an actor is accepting that international humanitarian law applies * you cannot engage directly, but you might still be able to assert influence through others. For specific recommendations and resources on different conflicts visit our IHL resources page.

Whilst the general applicability of IHL may be clear, its utility as the most effective tool to address a specific protection concern highly depends on the issue at stake. IHL mainly contains provisions that limit, restrict, or prohibit specific acts and methods of warfare. However, IHL also includes exceptions which can be used to justify certain conduct. <h2>Is the legal provision you want to rely on strict and explicit enough to leave no ambiguity?</h2>

[[

|reliable information]]

[[

|No permissible]]

When a provision is permissive and includes a lot of exceptions that could be used to justify certain conduct, you can still invoke other arguments that are not based on the law. For example, you could highlight that an act can have unintended consequences, such as triggering a health crisis. For specific recommendations and resources on different conflicts visit our IHL resources page. [[Recommendations|Recommendations non-legal]]

<b>Example: How to assess the utility of a legal provision</b> <b>Protection issue:</b> Reports of attacks against a hospital <b>Relevant provision:</b> Rule 28. Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy. <b>Assessment:</b> Protected in all circumstances is very explicit and therefore a strong level of protection. However, it is possible for them to lose protection. <b>Conclusion:</b> IHL very strong and explicit. Check facts to make sure there is no allegation or credible suggestions of the medical unit being used for acts harmful to the enemy. <a href="javascript:history.back()">Go Back</a>

You are in <b>a relatively strong position</b>: * one or several relevant treaties are applicable * an actor is accepting that international humanitarian law applies * the specific legal provision you want to rely on might be too permissive, but you can still use other arguments. For specific recommendations and resources on different conflicts visit our IHL resources page.

<h2>Do you have detailed or reliable information about a protection issue or possible IHL violation?</h2>

[[

|Yes IHL acceptability]]

[[

|No reliable information]]

When facts are disputed or information is unclear, it is smart to adapt your language. Under the right circumstances, acknowledging the limits of your knowledge can even be helpful for the sake of confidence building. Instead of assertive claims, consider phrases like "possible violations", "serious concern over", or "according to the available information". Some actors might also be deterred and become defensive when explicit reference to IHL is made. <h2>Can the actor be influenced by direct reference to IHL language?</h2>

[[

|recommendations no reliable information]]

[[

|No IHL language]]

You are in <b>a strong position</b>: * one or several treaties are applicable * an armed actor is accepting that international humanitarian law applies * you can engage directly * you do not have strong and reliable information, but you can still excert influence. For specific recommendations and resources on different conflicts visit our IHL resources page.

When is IHL a useful tool?

Understanding when international humanitarian law is most powerful.

Basic principles of IHL

Understanding international humanitarian law

When does IHL apply?

Sources of international humanitarian law

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