LESSON 2: PRINCIPLES OF IHL

Key
 Website on the Principles of IHL- https://casebook.icrc.org/glossary/fundamental-
principles-ihl
 Combatant – members of armed forces.


Basic principles of IHL

Rules of international humanitarian law (IHL) attempt in broad terms to regulate conflict
in order to minimize human suffering. IHL reflects this constant balance between the
military necessity arising in a state of war and the needs for humanitarian protection.

Overview
International Humanitarian Law is founded upon the following principles:
(1) The principle of humanity (the “elementary considerations of humanity being
reflected and expressed in the Martens clause)/ Principle Unnecessary Suffering.
(2) The principle of distinction between civilians and combatants, and between civilian
objects and military objectives;
(3) The principle of proportionality,
(4) The principle of military necessity (from which flows the prohibition of superfluous
injury and unnecessary suffering.
Each basic principle should be found within the specific rules and norms of IHL itself, but
the principles may also help interpretation of the law when the legal issues are unclear or
controversial.
Depending on the issue, the balance between the principles and interest shifts. For
example, during hostilities, military necessity may limit the notion of humanity by
allowing for destruction, but in other situations such as the protection of the wounded
and sick, the principle of humanity is at the heart of the legal rules.

1. The principle of distinction between civilians and combatants, and between

civilian objects and military objectives

Rule 1. The parties to the conflict must at all times distinguish between civilians and
combatants. Attacks may only be directed against combatants. Attacks must not be
directed against civilians

The principle of distinction underpinning many rules of IHL is that only combatant may be
directly targeted as well as military objectives. This is a necessary compromise that IHL
provides for in order to protect civilians in armed conflict. Without the principle of
distinction, they would be no limitation on the methods of warfare.
The specific rules where the principle of distinction is set out concerns Article 48 and 52
of Additional Protocol 1 to the Geneva Conventions. This defines who is a combatant and

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a military object that can be lawfully attacked. Any direct attack against a civilian or
civilian object is not only a grave breach but also a violation of IHL.
Direct attacks against civilians and/or civilian objects are categorized as war crimes.
Additionally, any weapon which is incapable of distinguishing between civilians/civilian
objects and fighters/military objects is also prohibited under IHL.
The principle requires that a combatant distinguishes himself/herself in order to allow the
enemy distinguish them.
This principle also means that any attacks targeted at what appears to be a military
objective must cease if it becomes apparent that the target is actually exclusively
civilian.
The principle is also a rule of customary international law, binding on all states.
Every combatant is permitted to take part in hostility as long as they distinguish
themselves from civilians and other combatants.
Civilians are not permitted to take direct part in hostilities and are immune
from attack. If they take a direct part in hostilities they forfeit this immunity”
Combatants are protected only when they are hors de combat but are protected from
certain means and methods of warfare whereas civilians are protected at all times.

Direct Participation in Hostilities

The notion of direct participation in hostilities refers to specific acts carried out by
individuals as part of the conduct of hostilities between parties to an armed conflict.
The notion of direct participation in hostilities essentially comprises two elements,
namely that of “hostilities” and that of “direct participation” therein.
While the concept of “hostilities” refers to the (collective) resort by the parties to the
conflict to means and methods of injuring the enemy, “participation” in hostilities refers
to the (individual) involvement of a person in these hostilities. Depending on the quality
and degree of such involvement, individual participation in hostilities may be described
as “direct” or “indirect”.

Restriction to specific acts

In treaty IHL, individual conduct that constitutes part of the hostilities is described as
direct participation in hostilities, regardless of whether the individual is a civilian or a
member of the armed forces.
This illustrates that the notion of direct participation in hostilities does not refer to a
person’s status, function, or affiliation, but to his or her engagement in specific hostile
acts.

Constitutive elements of direct Participation in hostilities

In order to qualify as direct participation in hostilities, a specific act must meet the
following cumulative criteria:
1. The act must be likely to adversely affect the military operations or military capacity of
a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on

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persons or objects protected against direct attack (threshold of harm), and

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2. There must be a direct causal link between the act and the harm likely to result either
from that act, or from a coordinated military operation of which that act constitutes an
integral part (direct causation), and
3. The act must be specifically designed to directly cause the required threshold of harm
in support of a party to the conflict and to the detriment of another (belligerent nexus).

A. Threshold of Harm
In order to reach the required threshold of harm, a specific act must be likely
to adversely affect the military operations or military capacity of a party to an
armed conflict or, alternatively, to inflict death, injury, or destruction on
persons or objects protected against direct attack.
For a specific act to qualify as direct participation in hostilities, the harm likely to result
from it must attain a certain threshold. This threshold can be reached either by causing
harm of a specifically military nature or by inflicting death, injury, or destruction on
persons or objects protected against direct attack.
The qualification of an act as direct participation does not require the
materialization of harm reaching the threshold but merely the objective
likelihood that the act will result in such harm.
Therefore, the relevant threshold determination must be based on “likely” harm, that is
to say, harm which may reasonably be expected to result from an act in the prevailing
circumstances.

a) Adversely affecting the military operations or military capacity of a party to the

conflict
When an act may reasonably be expected to cause harm of a specifically military nature,
the threshold requirement will generally be satisfied regardless of quantitative gravity. In
this context, military harm should be interpreted as encompassing not only the infliction
of death, injury, or destruction on military personnel and objects, but essentially any
consequence adversely affecting the military operations or military capacity of a party to
the conflict
For example, beyond the killing and wounding of military personnel and the causation of
physical or functional damage to military objects, the military operations or military
capacity of a party to the conflict can be adversely affected by sabotage and other armed
or unarmed activities restricting or disturbing deployments, logistics and
communications.
At the same time, the conduct of a civilian cannot be interpreted as adversely affecting
the military operations or military capacity of a party to the conflict simply because it fails
to positively affect them. Thus, the refusal of a civilian to collaborate with a party to the
conflict as an informant, scout or lookout would not reach the required threshold of harm
regardless of the motivations underlying the refusal.

Inflicting death, injury or destruction on persons or objects protected against

direct attack
Specific acts may constitute part of the hostilities even if they are not likely to adversely
affect the military operations or military capacity of a party to the conflict. In the absence
of such military harm, however, a specific act must be likely to cause at least death,

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injury, or destruction. The most uncontroversial examples of acts that can qualify as
direct participation in hostilities even in the absence of military harm are attacks directed
against civilians and civilian objects
For a specific act to reach the threshold of harm required to qualify as direct participation
in hostilities, it must be likely to adversely affect the military operations or military
capacity of a party to an armed conflict. In the absence of military harm, the threshold
can also be reached where an act is likely to inflict death, injury, or destruction on
persons or objects protected against direct attack
In both cases, acts reaching the required threshold of harm can only amount to direct
participation in hostilities if they additionally satisfy the requirements of direct causation
and belligerent nexus.

B. Direct causation
In order for the requirement of direct causation to be satisfied, there must be
a direct causal link between a specific act and the harm likely to result either
from that act, or from a coordinated military operation of which that act
constitutes an integral part.

C. Belligerent nexus
In order to meet the requirement of belligerent nexus, an act must be
specifically designed to directly cause the required threshold of harm in
support of a party to the conflict and to the detriment of another.
In other words, in order to amount to direct participation in hostilities, an act must not
only be objectively likely to inflict harm that meets the first two criteria, but it must also
be specifically designed to do so in support of a party to an armed conflict and to the
detriment of another (belligerent nexus).

2. The prohibition of attacks against those hors de combat

The prohibition to attack any person hors de combat (those who are sick and wounded,
prisoners of war) is a fundamental rule under IHL. For example, while a solider could be
targeted lawfully under normal circumstances, if that soldiers surrenders or is wounded
and no longer poses a threat, then it is prohibited to attack that person. Additionally, they
may be entitled to extensive protections if they meet the criteria of being a Prisoner of
War.

3. The prohibition on the infliction of unnecessary suffering

While IHL does permit violence, it prohibits the infliction of unnecessary suffering and
superfluous injury. While the meaning of such terms is unclear and the protection may as
such be limited, even fighters who may be lawfully attacked, are provided protection by
this prohibition. One rule that has been established based on this principle is the
prohibition on the use of blinding laser weapons.

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4. The principle of proportionality
The principle of proportionality limits and protects potential harm to civilians by
demanding that the least amount of harm is caused to civilians, and when harm to
civilians must occur it needs be proportional to the military advantage. The article where
proportionality is most prevalent is in Article 51(5) (b) of API concerning the conduct of
hostilities which prohibits attacks when the civilian harm would be excessive in relation to
the military advantage sought. This is an area of hostilities where we often hear the term
‘collateral damage’.

The principle cannot be applied to override specific protections, or create exceptions to

rules where the text itself does not provide for one. As with the principle of necessity, the
principle of proportionality itself is to be found within the rules of IHL themselves. For
example, direct attacks against civilians are prohibited and hence a proportionality
assessment is not a relevant legal assessment as any direct attack against even a single
civilian who is not taking part in hostilities is a clear violation of IHL. Proportionality is only
applied when a strike is made against a lawful military target.

5. The notion of necessity

A dominant notion within the framework of IHL is military necessity, often the principle
which clashes most with humanitarian protection. Military necessity permits armed forces
to engage in conduct that will result in destruction and harm being inflicted.
The concept of military necessity acknowledges that under the laws of war, winning the
war or battle is a legitimate consideration.

However the concept of military necessity does not give the armed forces the freedom to
ignore humanitarian considerations altogether and do what they want. It must be
interpreted in the context of specific prohibitions and in accordance with the other
principles of IHL.
It is important to note that the notion itself is to be found within the rules of IHL. For
example, Article 52 of Addition Protocol I lists those objects that can be subject to lawful
attacks. The notion cannot be applied to override specific protections, or create
exceptions to rules where the text itself does not provide for one.

6. The principle of humanity

The principle of humanity, and its absence during the battle of Solferino of 1859, was the
central notion that inspired the founder of the International Committee of the Red Cross
(ICRC), Henry Dunant. The principle stipulates that all humans have the capacity and
ability to show respect and care for all, even their sworn enemies. The notion of humanity
is central to the human condition and separates humans from animals.

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IHL, the principles of which can be found in all major religions and cultures, set out only
basic protections, but ones which look to demonstrate that even during armed conflict
there is some common sense of and respect for humanity. Modern IHL is not naive and
accepts that harm, destruction and death can be lawful during armed conflict. IHL simply
looks to limit the harm, and the principle of humanity is very much at the heart of this
ambition. Many rules of IHL are inspired by this notion, specifically those setting out
protections for the wounded and sick.

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