International Humanitarian Law (IHL) is one of the most important instruments of the International community. It ensures the safety and dignity of the people especially in times of war. It attempts to protect a measure of humanity amidst conflict, with the principle that there are limits even in times of war. IHL applies only to the situations of the armed conflict. This paper discusses the international humanitarian law, its evolution, and its fundamental principles in detail. International instruments, war, humanity, armed conflict.
Introduction
As we know, the world was and is faced repetitively with the cruelties of warfare. Perhaps, war is the most ancient form of inter-group relationship. Countless wars have taken place in modern world history. All the people in the world day by day see the atrocities of wars and the suffering imposed upon people. To overcome this, International Humanitarian Law steps in, to give protection to the persons affected by the armed conflict. Hence it is important to study the fundamentals of international humanitarian laws.
International Humanitarian Law
International Humanitarian Law (IHL), otherwise known as the law of war or the law of armed conflict, is a set of rules that seek to limit the effects of armed conflict. It is a legal framework that applies to the situations of armed conflict and occupation. IHL deals with two key areas:
- Protection and assistance to the persons affected by the hostilities,
- Restrictions on the means and methods of warfare – in particular weapons – and the methods of warfare, such as military tactics.
International humanitarian law is a part of Public International Law, which regulates relationships between States and is divided into two branches:
- Geneva Law (Red Cross Law), which aims to protect the defenseless
- Hague Law, which builds up limits to the conduct of military tasks.
IHL as jus in bellois purely humanitarian, seeking to limit the suffering caused in armed conflicts by protecting and assisting all victims to the greatest extent possible. It governs how warfare is conducted. IHL as jus ad bellum addresses the legality of military action or the conditions under which States mat resort to war or the use of armed force in general.
IHL, in the situation of conflict, represents a balance between military necessity and humanitarian considerations. IHL provides requisite solutions when humanitarian needs and military target clash. It tries to ensure the security and protection of human dignity even in times of war. Broadly speaking, International Humanitarian Law is a branch of public international law that aims to direct the conduct of armed conflict and to mitigate the suffering that it causes[1].
Evolution of International Humanitarian Law
The regulation of war is not just a Western concern. China, Japan, Indian and Arabic cultures have their traditions of rules of warfare. The Indian epic, Mahabharata, approx. 400 BC and the laws of Manu included provisions outlawing the killing of surrendering adversaries who were no longer capable of fighting. Another example, Hammurabi, King of Babylon, 1728-1686 BC, wrote the ‘Code of Hammurabi’ thinking to protect the weak against oppression by the powerful and strong. The code also says that hostages shall be released on payment of a ransom.
However, the 19th century was the time in history when a movement won forced to codify the laws of war and when modern international humanitarian law was born. The Lieber Code[2] was the key legal code with one set of instructions for forces in the field, governing laws of war and customs of war. It was named after Francis Lieber (1800-1872), a German-American professor of political science and law at Columbia University, New York, who prepared a manual, which was enacted in 1863 for the Union Army of the United States in the American Civil War (1861-1865). The code contains 157 articles that were based on the ideas flowing from Enlightenment.
Two men played an important role in the development of humanitarian law: Henry Dunant who published a book ‘A Memory of Solferino’ and General Dufour, chairperson of the 1864 Diplomatic Conference that adopted the Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field in 1864. This convention was the medium for the Geneva tradition of humanitarian law, as it introduced the following humanitarian instruments: the 1907 Hague Convention, the 1949 Geneva Conventions and the 1977 Additional Protocols. Eventually, the International Committee of the Red Cross (ICRC) was founded in Geneva in 1863. The development of international humanitarian law, from now on, experienced an impressive development in various aspects[3].
A major part of international humanitarian law is included in the four Geneva Conventions of 1949. Every state in the country has agreed to be bound by them. The Conventions have been expanded by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts.
Other agreements prohibiting the use of certain weapons and military tactics include:
- The Convention for the Protection of Cultural Property in the event of Armed Conflict, in addition to its two protocols, 1954
- The Biological Weapons Convention, 1972
- The Conventional Weapons Convention and its five protocols, 1980
- The Chemical Weapons Convention, 1993
- The Ottawa Convention on anti-personal mines, 1997
- The Optical Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 2000[4].
Fundamental Principles of International Humanitarian Law
Article 22 of the Hague Regulations (reinstated in article 35.1 of Additional Protocol I) establishes that “the right of belligerents to adopt means of injuring the enemy is not unlimited”. International Humanitarian law laid down the following principles:
- The distinction between civilians and combatants
- Prohibition of attacks against those hors de combat
- Prohibition on the infliction of unnecessary suffering
- Principle of proportionality
- Principle of necessity
- Principle of humanity
The distinction between civilians and combatants[5]
This principle is a form of customary international law. Articles 48 and 52 of Additional Protocol 1 to the Geneva Convention deals with the Principle of Distinction. Article 48 of Additional Protocol 1 states “parties to the conflict should distinguish between the civilian population and combatants and between civilian objects and military objectives and shall direct their protection only against military objectives”. Any person not belonging to the armed forces, even in the case of doubt, is considered a civilian (Article 52, Protocol 1).
Any direct attack against a civilian object is not only a violation of International Humanitarian Law but also a grave breach. Direct attacks against civilian objects are categorized as war crimes. All acts of violence against civilians or civilian objects, whether committed in offense or defense are prohibited.
Prohibition of attacks against hors de combat
Persons put hors de combat (those who are sick and wounded, prisoners of war) is not at this point a legitimate target of military activities. Under IHL, the prohibition to attack any person hors de combat is a fundamental rule. For example, when a soldier is targeted lawfully under ordinary circumstances if that soldier gives up or is injured and no longer represents a danger, at that point, it is denied to attack that person. Furthermore, they may be entitled to extensive protection if they meet the standards of being a Prisoner of War.
Prohibition on the infliction of unnecessary suffering
While IHL grants violence, it prohibits the infliction of unnecessary suffering and injury. While the significance of such terms is not clear and the protection may as such be restricted, even soldiers who may be lawfully attacked are given protection by this prohibition. Based on this principle, one rule that has been set up is the prohibition on the use of blinding laser weapons.
Principle of Proportionality
The principle of proportionality attempts to strike a balance between the two conflicting concepts of military necessity and the requirements of humanity. The principle of proportionality is well expressed in Article 51(5) (b) of Additional Protocol I covering the conduct of hostilities which prohibits attacks when the civilian damage would be extremely concerning the military advantage sought.
For example, direct attacks against civilian objects are prohibited, and thus a proportionality assessment is not a relevant lawful assessment as any direct attack against even a single civilian who is not taking part in hostilities is a clear violation of International Humanitarian Law. The principle of Proportionality is applied only when a strike is made against a legal military target.
Principle of Necessity
Military Necessity is those which are essential for securing the ends of the war and which are lawful according to the modern laws of war (Lieber code). The U.S Air Force Manual laid down the concept of military necessity as follows: “Measures of regulated force not prohibited by international law which are fundamental for securing the prompt submission of the enemy, with the least possible expenditure of financial and human resources”. Military necessity grants armed forces to participate in conduct that will bring about destruction and harm being dispensed. The idea of military necessity recognizes that under the laws of war, winning the war or battle is a legitimate thought. Anyway, the idea of military necessity does not allow the armed forces to ignore humanitarian considerations altogether and do what they want.
Principle of Humanity
The principle of humanity is expressed in Common article 3 to Geneva Conventions I-IV, article 12/12/13/27 of Geneva Conventions I-IV, and article 4 of Additional Protocol II. It is the foundation for all of the detailed principles that are contained in the Geneva Conventions, which attempt to apply the requirement of humane treatment to specific contexts and set out the activity of the obligation in more specific terms. The humanity principle specifies that all humans should have the capacity to show respect and care for all, even their sworn enemies. The concept of humanity is central to the human condition and it separates humans from animals[6].
International and Non-International Armed Conflict
International Humanitarian Law applies only to armed conflict. It does not involve internal tensions or disturbances such as isolated acts of violence. The law is applicable only when a conflict has begun, and then equally to all sides irrespective of who started the fighting. It distinguishes international and non-international armed conflict.
International armed conflicts are those in which at least two states are included and are subject to a broad area of rules, including those set out in the four Geneva Conventions and Additional Protocol I.
Non-international armed conflicts are those confined to the region of a single state, including either regular armed forces fighting groups of an armed protestor, or armed groups battling one another. A more constrained scope of rules applies to internal armed conflicts and is laid down in common Article 3 to the four Geneva Conventions as well as in Additional Protocol II[7].
Conclusion
To conclude, International Humanitarian Law is necessary for the well being of the individual and the peaceful cooperation of states. In today’s world, most of the armed conflicts are civil wars and it takes place predominantly in poor countries. The International Humanitarian Law looks conflicted between two contradictory forces – the need to wage war adequately and the desire to ensure individuals and property against the attacks of such warfare. International Humanitarian Law compels States and non-state parties to utmost monitor and preserves the life and property of civilians. IHL principles have saved lives, regularly mitigated suffering, and often maintain some respect for human dignity.
Frequently Asked Questions
- What is International Humanitarian Law?
International Humanitarian Law, also known as the Law of the War or the Law of the Armed Conflict, is a set of rules applicable to the situations of armed conflict.
- When does IHL apply?
IHL applies only to armed conflicts. It applies to all parties to a conflict regardless of who started it.
- What does IHL deal mainly with?
International Humanitarian Law deal with two key areas:
- Protection and assistance to the persons affected by the hostilities,
- Restrictions on the means and methods of warfare – in particular weapons – and the methods of warfare, such as military tactics.
- What are the principles of International Humanitarian Law?
The principles are
- The distinction between civilians and combatants
- Prohibition of attacks against those hors de combat
- Prohibition on the infliction of unnecessary suffering
- Principle of proportionality
- Principle of necessity
- Principle of humanity
- What is the role of ICRC?
The International Committee of the Red Cross (ICRC) serves as the guardian of International Humanitarian Law.
References
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2507144
- https://www.nyulawglobal.org/globalex/International_Humanitarian_law.html
- https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
- https://www.diakonia.se/en/ihl/the-law/international-humanitarian-law-1/introduction-to-ihl/principles-of-humanitarian-law/
- [1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2507144
- [2] Lieber Code-a a written document to govern the conduct of the Union forces during the American Civil War.
- [3]https://www.nyulawglobal.org/globalex/International_Humanitarian_law.html
- [4] https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
- [5] Combatant – any member of the armed forces of a party to the conflict.
- [6]https://www.diakonia.se/en/ihl/the-law/international-humanitarian-law-1/introduction-to-ihl/principles-of-humanitarian-law/
- [7] https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
