May 26, 2024
Home » WAR AND LAW: INTERNATIONAL HUMANITARIAN LAW
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This article has been written by  Gopika Kalidas Naduvilath, a fifth-year law student pursuing BBA LLB (Hons) at Alliance University, Bangalore.

Introduction

Wars have been a constant companion in human history, causing disputes, damage, and great suffering to people. In order to cope with the destructive impact of Armed Conflicts, the International Community has established and introduced a system for international humanitarian law (IHL) Regulation. This framework aims to protect civilians, combatants and other persons not participating in the conflict through a balancing of armed demands with fundamental rights principles. This article will examine the origins, principles and importance of IHL, as well as its impact on the conduct of armed conflicts.

Meaning of International Humanitarian Law

IHL is a set of laws designed to mitigate the humanitarian repercussions of armed conflict. It protects people who are no longer directly or actively participating in hostilities, and it restricts the tools and methods of combat. IHL is often known as “the law of war” or “the law of armed conflict”. IHL is a subset of public international law derived from treaties, customary international law, and general principles of law outlined in Article 38 of the International Court of Justice Statute. A distinction must be made between IHL, which regulates the conduct of parties engaged in an armed conflict (jus in bello), and public international law, as set out in the Charter of the United Nations, which regulates whether a state may lawfully resort to armed force against another state (jus ad bellum). The Charter prohibits such use of force with two exceptions: cases of self-defence against an armed attack, and when the use of armed force is authorized by the United Nations Security Council. IHL does not stipulate whether the commencement of an armed conflict was legitimate or not, but rather seeks to regulate the behaviour of parties once it has started.[1]

The Origin of International Humanitarian Law

IHL has been established at the end of the 19th century when war’s consequences have become more obvious and destructive. Henry Dunant, a Swiss citizen, witnessed the aftermath of the Solferino battle in 1859 and was deeply affected by the suffering suffered by his wounded comrades. In that meeting he had been inspired to suggest the establishment of volunteer relief organizations, which would take care of victims in times of war. Dunant, together with Gustave Moyenier and others, established the International Committee of the Red Cross in 1863 and further encouraged the ratification of the first Geneva Convention in 1864[2]. The Geneva Conventions laid down a framework for contemporary IHL, the collection of treaties and protocols laying down how wounded soldiers are to be treated in combat. In addition, the need for IHL became more important and relevant as time goes by, especially after World Wars I and II.

Legal Framework of International Humanitarian Law

A significant part of IHL is the four Geneva Conventions adopted in 1949. They have been agreed to by almost every state in the world. The four Geneva Conventions are as follows: –

  • The first Geneva Convention protects wounded and sick soldiers on land during war 1864.
  • The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war 1907.
  • The third Geneva Convention applies to prisoners of war 1929.
  • The fourth Geneva Convention affords protection to civilians, including in occupied territory 1949.
  • Additional Protocol I – International Conflicts 1977.
  • Additional Protocol II – Non-International Conflicts 1977.
  • Additional Protocol III – Additional Distinctive Emblem 2005.

The Conventions have been expanded and reinforced by three further agreements being: –

  • Additional Protocol I – International Conflicts 1977.
  • Additional Protocol II – Non-International Conflicts 1977.
  • Additional Protocol III – Additional Distinctive Emblem 2005.

There are also other agreements that have been adopted by the world for the use of certain weapons and military tactics along with categorizing people and goods. Few of those agreements are: –

  • The Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954.
  • The Biological Weapons Convention 1972.
  • The Conventional Weapons Convention 1980.
  • The Chemical Weapons Convention 1993.
  • The Ottawa Convention on anti-personnel mines 1997.

The Principles of International Humanitarian Law

IHL has founded the following principles: –

  • The principle of humanity– The idea of humanity is about the humane treatment of all those involved in violent conflicts. It prohibits acts that result in unnecessary suffering or injury to civilians and non-combatants. The notion asserts that all humans have the capacity and ability to respect and care for others, especially their opponents. 
  • The principle of distinction between civilians and combatants– The principle of distinction, which holds that only fighters can be directly targeted, is at the heart of a number of IHL regulations. In the event of armed conflict, its purpose is to protect civilians. The Conventions specify who is combatant, and what types of military object can be lawfully used. A serious infringement of the IHL is considered to be an attack directly against a human or civil object. Direct attacks against civilians and civilian objects are categorised as war crimes. Additionally, any weapon which does not allow for a distinction between civilians or civilian objects and combatants or military objects is also prohibited under IHL. The principle is also a rule of customary international law and therefore binding on all states.
  • The prohibition of attacks against those hors de combat– The prohibition against striking someone hors de combat (sick, injured, or prisoners of war) is a basic principle of IHL. For example, while troops can be properly assaulted under normal conditions, it is prohibited to target them if they surrender or become injured and no longer pose a threat. They may be entitled to further protection if they fulfil the criteria for being prisoners of war.
  • The principle of proportionality– The principle of proportionality limits the potential harm to civilians by requiring that civilian casualties are reduced and if there is no possibility of avoiding them, it must be proportional to military advantages.
  • The notion of necessity– Military necessity is an essential issue of IHL, and often conflicts with the protection of human rights. The army is authorised to engage in activities that entail damage and harm, by reason of necessity. The concept of military necessity acknowledges that winning a war or battle is an appropriate consideration in accordance with the rules of war. Due to its frequent conflict with the protection of human rights, war necessity is a major question in IHL. When necessary, the army shall be authorized to carry out acts of destruction and injury. Under the rules of war, military necessity recognises that winning a war or a battle is a valid consideration.[3]

Importance of International Humanitarian Law

Under the provisions of the IHL, civilians and medical and religious soldiers shall be protected. It also protects those who have stopped to take part, such as wounded, shipwrecked, and ill fighters, as well as captives of battle. They have a right, as well as their physical and psychological health, to be respected. Legal protection is also provided for them. Without prejudice, they should be protected and treated with due respect in all situations. More specifically, it is prohibited to kill or hurt an opponent who surrenders or is unable to fight; the sick and injured must be gathered and cared for by the party in charge of them. All healthcare personnel, supplies, hospitals and ambulance services need to be secured.

Detailed laws regulate the custody of prisoners of war and the treatment of civilians under enemy command. Basic needs like food, housing and medical care are also covered. It shall also apply to communication with relatives. The legislation contains a number of easy to identify symbols that can be used for the identification of persons, places and objects under protection. The most important emblems are red crosses, red crescents and symbols of cultural property and civil protection infrastructure.

Conclusion

IHL is a reflection of humanity’s common desire for relief from the suffering resulting from violent conflicts. Its ideals, based on fundamental values of compassion, diversity, moderation and neutrality, are a basis for promoting humanitarianism in times of war. It is crucial that IHL continues to be established, revised and applied across the world’s new challenges with a view to limiting the horrors of war by virtue of principles like justice, compassion or respect for human dignity.  

The relief of the suffering caused by conflict is a goal of humanitarian law. Its restrictions are the result of a difficult balance between wartime needs (“military necessity”) and humanitarian norms. The subject of humanitarian law is sensitive and cannot be toyed with. In all circumstances, it must be upheld for the sake of humanity’s hopes and in a wide range of situations where life is at risk. We all have the potential to make a difference in understanding our basic goals and core beliefs, which will lead towards greater respect for them. A more humane world will benefit greatly from improved compliance with humanitarian law between all nations and those involved in armed conflicts.


[1] https://www.icrc.org/en/document/what-international-humanitarian-law.

[2] https://guide-humanitarian-law.org/content/article/3/international-humanitarian-law/.

[3] https://www.diakonia.se/ihl/resources/international-humanitarian-law/basic-principles-ihl/.


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