THE BASIC PRINCIPLES OF INTERNATIONAL

HUMANITARIAN LAW

International humanitarian law comprises a set of rules, established by treaty or custom,

applicable in situations of armed conflict. As noted, it is inspired by considerations of humanity
and the mitigation of human suffering.

International Humanitarian Law (IHL) can be defined as the branch of international law
limiting the use of violence in armed conflicts by:

a) sparing those who do not or no longer directly participate in hostilities;

b) restricting it to the amount necessary to achieve the aim of the conflict,

It is from this definition that the basic principles of IHL may already be drawn, namely: ·

the distinction between civilians and combatants, ·

the prohibition to attack those hors de combat, ·
the prohibition to inflict unnecessary suffering, ·
the principle of necessity, and ·
the principle of proportionality.

This definition nevertheless also reveals the inherent limits of IHL: ·

it does not prohibit the use of violence; ·

it cannot protect all those affected by an armed conflict; ·
it makes no distinction based on the purpose of the conflict; and
· it does not bar a party from overcoming the enemy;
it presupposes that the parties to an armed conflict have rational aims and that those aims as
such do not contradict IHL
Sources of International Humanitarian Law

‘Treaty law’ and ‘customary international law’ are the main sources of international
humanitarian law.

1.Treaties

(1) Hague Convention 1899 and 1907

The ‘law of the Hague’ is a colloquial term that refers to a body of law
mainly dealing with rules of conduct of hostilities and establishing
limitations or prohibitions of specific means and methods of warfare. It
comprises rules protecting persons who are not in the power of a party to the
conflict.

The Conventions and Declarations adopted at The Hague on 29 July 1899 concern issues
such as the pacific settlement of international disputes and the laws and customs of war,
which were strengthened in the 1907 Conventions. They also concern

 the prohibition on the use of projectiles that disperse asphyxiating gas and
 the prohibition on the use of bullets that expand or flatten easily in the
human body.
The Hague Conventions of 18 October 1907, address

 the pacific settlement of disputes (based on The Hague Convention I of

1899);
 the opening of hostilities (The Hague Convention III);
  the laws and customs of war (Convention IV, with annexes and regulations,
which develops Convention II of 1899 and cases of military occupation);
 the rights and duties of neutral powers in case of war on land (V);
 the status of merchant ships at the outbreak of hostilities (VI);
 the conversion of merchant ships into war ships (VII);
 the laying of automatic submarine contact mines (VIII);
 the bombardment by naval forces in time of war (IX);
 the adaptation to maritime war of the principles of the Geneva Convention
of 1906 (X);
 restrictions with regard to the exercise of the right of capture in naval war
(XI);
 the establishment of an international prize court (XII);
 the rights and duties of neutral powers in naval war (XIII).
Other treaties regulate the rules for the use or prohibition of certain weapons.

(2) Geneva Conventions of 1949:

• the wounded and the sick on land (First Geneva Convention)

• the wounded, the sick and the shipwrecked at sea (Second Geneva Convention)

• prisoners of war (Third Geneva Convention)

• civilians (Fourth Geneva Convention)

The four Geneva Conventions of 1949 are applicable in international armed conflict. One
article – common Article 3 – specifically applies in non-international armed conflict. All 196
States are party to the four Geneva Conventions of 1949, making them universal.

As a response to the development of new methods of combat, Additional Protocol I of 1977

confirmed the existing rules in international armed conflict and added further ones. Also,
because most conflicts since the Second World War have been non-international, States
decided to complement the rules of common Article 3 with a more developed framework of
protection for people suffering the effects of non-international armed conflict by adopting
Additional Protocol II of 1977

In 2005, a new additional instrument was adopted by States to remedy the problem of the
recognized emblems (the red cross and the red crescent) being wrongly perceived in certain
contexts as having religious, cultural or political connotations, and not being respected as
neutral distinctive signs. Additional Protocol III introduced an additional emblem, the red
crystal, which offers the same protection as the red cross and the red crescent emblems.

In addition to the four Geneva Conventions of 1949 and their three Additional Protocols of
1977 and 2005, a large number of treaties and other legal instruments deal with issues
relating to the conduct of hostilities and the protection of the civilian population. They
contain rules applicable in international armed conflict, non-international armed conflict or
both (the issues include the use of certain weapons, the protection of cultural property, the
protection of children, and the prosecution and punishment of criminal offences)

The four Geneva Conventions have achieved universal applicability as they have been universally
ratified. The Additional Protocols, however, have yet to achieve near-universal acceptance. The
United States and several other significant military powers (e.g. Iran, Israel, India and Pakistan)
are currently not parties to the protocols.

2- Customary International Law

Customary law is a body of rules that States regard as binding under international law. These
rules are identified by looking at the practice of States (including official accounts of military
operations and other official documents, military manuals, national legislation and case law).

These rules (which are accepted as law) need to be distinguished from practices that States do
not regard as obligatory (e.g. practices followed as a matter of policy rather than out of any
sense of legal obligation). Customary law may fill certain gaps in the protection provided to
victims of armed conflict by treaty law.

These gaps result when

 1. certain States do not ratify certain treaties (e.g. the Additional Protocols or certain
weapons conventions). (In the case of armed conflicts involving a coalition of States
with different treaty based obligations – because they have not all ratified the same
treaties – customary law may represent those rules that are common to all members of
the coalition. In this situation, customary law may serve as a base for drafting
common rules of engagement.) or when:
2. treaty law lacks detailed rules on certain issues pertaining to non-international armed
conflict. (This is the case with respect to the conduct of hostilities (military objectives,
indiscriminate attacks, proportionality, precautions in attack), the protection of
journalists, humanitarian assistance, and also in other areas such as the
implementation of humanitarian law. Once again, customary law may fill the gap,
because practice has created a substantial number of customary rules that are more
detailed than the often rudimentary provisions in Additional Protocol II of 1977.)

Customary international law is made up of rules that are considered “general practice
accepted as law” and that exist independently of treaty law. Customary IHL is of
crucial importance in today’s armed conflicts because it fills gaps left by treaty law
applicable to both international and non-international conflicts and so strengthens the
protection afforded to victims.

Customary IHL continues to be relevant in today’s armed conflicts for two main
reasons. The first is that, while some States have not ratified important treaty law, they
remain nonetheless bound by rules of customary law.

The second reason is the relative weakness of treaty law governing non-international
armed conflicts – those that involve armed groups and usually take place within the
boundaries of one country. A study published by the ICRC in 2005 showed that the legal
framework governing internal armed conflicts is more detailed under customary international
law than under treaty law. Since most armed conflicts today are non-international this is of
particular importance.

3. General principles of law: IHL recognises a number of jus cogens accepted and recognised
by the international community of states as a whole (norms, from which no derogation is allowed,
for example, prohibitions against genocide and torture.
4.Judicial decisions and the teachings of the most highly qualified publicists as subsidiary
sources: International courts have played a role in interpreting and developing IHL.

ORIGIN OF IHL

It has been impossible to trace the documentary evidence of when and where the first legal
rules of a humanitarian nature emerged and who the creator was. However, wise men,
religious figures and powerful lords have since time immemorial attempted to limit the
consequences of war by means of generally binding rules. Also customary unwritten rules
of war, many of which were explored at the Nuremberg War Trials 1 are considered the
source of IHL. By extension, they also define both the permissive rights of these powers as
well as prohibitions on their conduct when dealing with irregular forces and non-signatories.

IHL is governed by an important, but distinct, part of international law set out in the United
Nations Charter. This law when in effect during an armed conflict in Latin is termed as jus in
bello.(The law that governs the way in which warfare is conducted distinct from jus ad
bellum or law on the use of force that seeks to limit resort to force between states)

Today’s universal and the most part written IHL can be traced directly back to two persons ,
both of whom were marked by a traumatic experience of war.

Henry Dunant ( Memoir of Solferino)

Francis Lieber (Lieber Code)

At almost the same time, but apparently without knowing of each other’s experience, Dunant
and Lieber made essential contributions to the concept and contents of contemporary IHL.
They did not invent protection for the victims of war but they expressed an old idea in a form
adapted to the times.

1
Series of trials held in Neremberg,Germany in1945-46 in which former Nazi leaders were indicted
and tried as war criminals by the International Military Tribunal.
Both built an idea put forward by Jean Jacque Rousseau in the Social Contract of 1762
“ .......soldiers may only be fought as long as they themselves are fighting .Once they lay
down their weapons, they again become men, their lives must be spared.

Way back in 1859, witnessing the sufferings of the wounded in the Battle of Solferino,he
personally helped more than 1000 casualties and called on local inhabitants to assist him in
the work and proposed two practical measures calling for direct action - an international
agreement on the neutralization of medical personnel in the field and the creation of a
permanent organisation for practical assistance to the war wounded.

The first led to the adaptation in 1864 of the initial Geneva Convention, the second saw the
founding of the Red Cross. In 1864, 12 states undertook to respect the immunity of military
hospitals and their staff, to care for sick and wounded soldiers whatever their nationality and
to respect the emblem of the Red Cross.

The Convention formed the basis of humanitarian activities during the wars in Franco
Prussian War (1870), the Spanish American War (1898), and the Russo Japanese War
(1904).

It was revised and developed by a diplomatic conference in 1906 and further revised and
improved in the light of the experience of the 1 st World War, by the Geneva Convention of
1929.

A similar system of protection to the sick and wounded in naval warfare was achieved in a
different framework through the Hague Peace Conferences of 1899 and 1907.The Hague
Convention of 1899 extended the provisions of the original Geneva Convention to maritime
warfare when the latter was revised in 1906, its principles were extended to war at sea by the
Hague Convention of 1907.

The Hague Conventions of 1899 and 1907 are a series of international treaties and
declarations negotiated at two international peace conferences at Hague in
the Netherlands. Along with the Geneva Conventions, the Hague Conventions were among
the first formal statements of the laws of war and war crimes in the body of
secular international law. A third conference was planned for 1914 and later rescheduled for
1915, but it did not take place due to the start of World War I.
The Hague Conventions of 1899 and 1907 were the first multilateral treaties that addressed
the conduct of warfare and were largely based on the Lieber Code, which was signed and
issued by US President Abraham Lincoln to the Union Forces of the United States on 24
April 1863, during the American Civil War.

The Lieber Code of April 24, 1863, also known as General Order No. 100, was an
instruction signed by U.S. President Abraham Lincoln to the Union Forces of the United
States during the American Civil War that dictated how soldiers should conduct themselves
in wartime that set out regulations for behaviour in times of martial law; protection
of civilians and civilian property and punishment of transgression; deserters, prisoners
of war, hostages, and pillaging; partisans; spies; truces and prisoner exchange; parole
of former rebel troops; the conditions of any armistice, and respect for human
life; assassination and murder of soldiers or citizens in hostile territory; and the status
of individuals engaged in a state of civil war against the government. As such, the code
was widely regarded as the best summary of the first customary laws and customs of war in
the 19th century and was welcomed and adopted by military establishments of other nations.
The 1874 Brussels Declaration, which was never adopted by all major nations, listed 56
articles that drew inspiration from the Lieber Code. Much of the regulations in the Hague
Conventions were borrowed heavily from the Lieber Code.

These treaties and conventions remained in force for more than 40 years during the first and
second World Wars and was not replaced until 1949. Adopted in reaction to the horror of
World War II, they clarify and codify the many rules of the laws of armed conflict that had
been established in earlier treaties. These Conventions have reached near-universal
ratification. Known as the Geneva Conventions, this agreement became the foundation of
modern international humanitarian law, which now encompasses four conventions and three
additional protocols .Collectively, they represent the world community’s modern efforts to
protect people in times of armed conflict. The four Geneva Conventions Geneva of 1949 and
their 1977 Additional Protocols contain the most important rules that regulate the conduct of
armed conflict and seek to limit its effects since then and constitute the heart of international
humanitarian law.

They specifically protect people who are not taking part in the hostilities such as civilians,
health workers and aid worker, the wounded, sick and shipwrecked soldiers and prisoners of
war. The Conventions and their Protocols call for measures to be taken to prevent or put an
end to all breaches. The Geneva Conventions hence simultaneously codify the laws of war
and the rules governing relief. The Conventions proceed by category, each one establishing
the rules of relief in situations of conflict for a specific category of persons.

The Four Geneva Conventions of 12 August 1949 are:

 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field (GCI)
 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and
Shipwrecked Members of Armed Forces at Sea (GCII)
 Geneva Convention Relative to the Treatment of Prisoners of War (GCIII)
 Geneva Convention Relative to the Protection of Civilians in Time of War (GCIV)
The first three conventions deal with what might be called the traditional functions of the Red
Cross. The fourth was quite new and represents the first attempt to draw up a treaty to deal
with the problems mentioned earlier. The question of chemical and bacteriological warfare
regulated by the Geneva Protocol of 1925.

Even though international humanitarian law is based on conventions, today it has

acquired a customary character. Therefore, its norms bind even States that have not
ratified the Conventions.

Other agreements that prohibit the use of certain weapons and military tactics and
protect certain categories of people and goods. These agreements include:

(1) First Hague Declaration of 1899

(2) Second Hague Convention of 1907
(3) The 1954 Convention for the Protection of Cultural Property in the Event of
Armed Conflict, plus its two protocols;
(4) The 1972 Biological Weapons Convention
(5) The 1980 Conventional Weapons Convention and its five protocols
(6) The 1993 Chemical Weapons Convention
(7) The 1997 Ottawa Convention on Anti-Personnel Mines
(8) The 2000 Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict.
Difference and Inter relationship Between International
humanitarian law and international human rights law

 They are both concerned with the protection of the life, health and
dignity of individuals. IHL applies in armed conflict while human
rights law applies at all times, in peace and in war.

 Both international humanitarian law and human rights law apply in

armed conflicts. The main difference in their application is that
international human rights law allows a State to suspend a number of
human rights if it faces a situation of emergency. IHL cannot be
suspended (except as provided in Article 5 to the Fourth Geneva
Convention).

 A State cannot suspend or waive certain fundamental rights that must

be respected in all circumstances. These include the right to life, the
prohibition of torture and inhuman punishment or treatment, the
outlawing of slavery or servitude, the principle of legality and the
non-retroactivity of the law and the right to freedom of thought,
conscience and religion.

 States have a legal duty to respect and implement both IHL and
human rights law. Compliance with IHL requires a state to introduce
national legislation to implement its obligations, to train its military
and to bring to trial those in grave breach of such law. Human rights
law also contains provisions requiring a State to take legislative and
other appropriate measures to implement its rules and punish
violations.
 IHL is based on the Geneva and Hague Conventions, Additional
Protocols and a series of treaties governing means and methods of
waging war such as those banning blinding laser weapons, landmines
and chemical and biological weapons, as well as customary law.
International human rights law is more complex and unlike IHL
includes regional treaties. The main global legal instrument is the
Universal Declaration of Human Rights adopted by the UN General
Assembly in 1948. Other global treaties include the International
Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights as well as treaties on the
prevention and punishment of torture and other forms of cruel,
inhuman or degrading treatment or punishment, on the elimination of
racial discrimination and discrimination against women, or on the
rights of the child. Regional human rights conventions or charters
have been adopted in Europe, the Americas, Africa, and the Arab
region.

 In situations of armed conflict, human rights law complements and

reinforces the protection afforded by International Humanitarian Law.