International Humanitarian Law
International Humanitarian Law (IHL) is the legal framework that governs activities during armed conflict. Its rules can mostly be found in the Four Geneva Conventions of 1949 and their Additional Protocols of 1977, as well as customary international law.
As summarised by the ICRC, IHL is ‘a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare’.
Arms and other military equipment, whose export is regulated by the ATT and EU Common Position, can be employed to commit IHL violations in the context of an armed conflict, both during active hostilities and when persons are captured and detained.
‘Serious’ Violations of IHL
Both the ATT and the EU Common Position prohibit the transfer of arms where these would be used in the commission of serious violations of IHL.
‘Serious’ violations, although not specifically defined under these instruments, have been interpreted to include ‘grave breaches’ of the Geneva Conventions, as well as other war crimes that may be perpetrated both in international and non-international armed conflicts, including those codified in the Rome Statute of the ICC, and acts amounting to war crimes under customary IHL.
Conduct in an armed conflict that could foreseeably involve exported arms and that would normally be considered as a serious violation of IHL for the purposes of the ATT and EU Common Position include:
- Any deliberate attacks intentionally directed against civilians or civilian objectives
- Disproportionate attacks, meaning attacks that would cause harm to civilians or civilian objectives that is excessive in relation to the expected concrete and direct military advantage
- Violence, namely acts of torture or ill treatment, against captured persons who are protected under IHL (civilians, prisoners of war, the wounded and sick).