This article has been written by Sangeet Kumar Khamari from KIIT School of Law, Odisha. This article talks about the fundamental principles of International humanitarian law and its international conventions and contemporary developments. 

Introduction

International humanitarian law is that branch of the law of nations that seeks to impose limits on the destruction and suffering caused by armed conflicts. It lays down the principle of Article 22 of the Hague Regulations. A major part of International humanitarian law is contained in the Geneva conventions of 1949. 

Article 4 and Article 27 of the Geneva Convention occupy a key position among the Articles of the convention. It is the basis of the convention proclaiming as it does the principles on which the whole of ‘geneva law’ is founded. It proclaims the principle of respect for the human person and the secured character of the basic rights of individual men and women.

Most principles of the Humanitarian law include the principle of humanity, the principle of distinction between civilians and combatants, and between civilian objects and military objectives, the principle of proportionality and the principle of military necessity. These principles of law are recognized by civilized Nations and it can also be called a domestic law principle which is common to all legal orders. However, because of the diversity of countries and their legal systems, only some of the principles can work well. Principles such as good faith and proportionality, which have also become customary law and have been codified, can be used in supplementing and implementing International Humanitarian Law. Other principles may be real to the ideal law and based on logic rather than a legal rule which has been implemented. If any kind of attack is prevented by imposing restrictions on the civilians, it is not law, but the logic that attacks should not be directed at a military object as it can harm the civilians.

History of International Humanitarian Law

In the Indian epic Mahabharat approx 400 BC, the Laws of Manu incorporated provisions outlawing the killing of surrendering adversaries who were no longer capable of fighting. These included people who were aged, soldiers who were injured and lost their hands, legs and any other body part likewise. Let’s take an example of a king named Hammurabi who was the king of Babylon. He drafted “Code of Hammurabi” thinking how to protect weaker civilians from the stronger ones. This code also says that the hostages shall be released on payment of a ransom.  

The modern world has placed its hopes in internationalism. Similarity alone is often the idea for universality, and in formulating and perfecting this law, the International Committee of the Red Cross has sought exactly this footing and suggests rules acceptable to all or any because they are fully consistent with human nature. Meanwhile, despite this universal concern to limit the suffering caused by war, the regulation of the impact of war had been attempted many times. 

The 19th century, however, was the instant in history when a movement won energy to codify the laws of war and when modern international humanitarian law was born. International lawyers ask the Lieber Code (a document written to control the conduct of the Union forces during the American Civil War) because the first example of the codification of the laws of war, named after Francis Lieber (1800-1872), a German-American professor of politics and law at Columbia University, New York, who prepared  on the behalf of Lincoln, a manual, which was enacted in 1863 for the Union Army of the US within the American war (1861-1865). This Code was the primary code with one set of instructions for forces within the field, governing laws of war and customs of war. The 157 articles of the Code were based on the ideas flowing from enlightenment, as it, for example, stressed that armed enemies should be attacked and the unarmed civilians and their properties should be respected and also the prisoners and the wounded should be humanely treated. One merchant named Henry Dunant from Geneva, Switzerland witnessed the fight of 40000 of Austria, French, and Italian soldiers during the Italian war for unification who were wounded on the battlefield of solferino in 1859.

Basic principles of International Humanitarian law

International humanitarian law has mainly two basic foundation principles. The Principle of Humanity and the Principle of military necessity. Finding the balance between these two principles is the role which can be loosely described by the legislature. The state shall adopt the convention regarding the international humanitarian law or contribute through their practice for the formation of customary international law rule that applies armed act. According to the principle of humanity, the state and the civilians or combatants should help each other and according to the principle of military necessity, the armed forces which are trained by the government of the state should always be ready for any type of dispute in the state.

Principle of Humanity

This principle specifies that all humans have the capacity and ability to show respect and care for all, even their sworn enemies. Modern International Humanitarian Law is not naive and accepts that harm, destruction and death can be lawful during armed conflicts, International humanitarian Law simply looks to limit the harm, and the principle of humanity is very much at the spirit of this ambition. Many rules of International humanitarian law are inspired by this idea, specifically those setting out protections for the wounded and sick.

Principle of Military Necessity

No principle is more central to the content and understanding of Military necessity. Military necessity, as understood by modern civilised nations, consists in the necessity of those measures which are needful for securing the end of the war, which are lawful according to the modern law.

Other Principles

These include principles like:

• The distinction between civilians and combatants,

• The distinction between civilian objects and military objectives,

• Necessity, 

• Prohibition on causing unnecessary suffering.

  

These principles are not based on a separate source of international law but are based upon treaties, customs and the general principles of law. These principles can be derived from the existing rules or expressing the rule substance and meaning and also they support the existing rule, inspire them and get an easy way to make them understand anyone. 

Specially Protected Persons and Objects

There are specifically protected persons and objects in International Humanitarian Law such as:

•  Medical and religious personnel and object,
•  Humanitarian relief personnel and object,
•  Journalists,
•  Some protected zones, 
•  Cultural properties, 
•  The natural environment, 
•  Work and installations containing dangerous forces, 
•  Personnel and objects involved in a peacekeeping mission.

Major weapons and IHL treaties associated with them

Distinction Between International Armed and Non-International Armed Conflict

Traditionally law of international armed conflict was applied to war only between states. The distinction between international and non-international armed conflicts can be explained by the history of the development of International law in general and International humanitarian law in particular. Additional protocols of the Geneva convention of 1949 dealt separately with international conflict and non-international conflict. Additional protocol I dealt with international conflicts. These treaties contain the rules relating to the conduct of hostilities and rule relating to the protection of those who do not take part. On the other hand, the non-international armed conflicts have limited number of treaty rules as mentioned above, they are restricted to common Article 3, provisions of the additional protocol II and Article 8(2)(c) and Article 8(2)(e) of the ICC statute.

International Conventions

The mine bar convention

The mine bar convention is also known as the “Ottawa treaty”. It was the result of the Ottawa process which was launched by the Canadian Government by following the first review conference for the 1980 conventions or conventional weapons which was not allowed on anti-personnel mine or not able to adopt far-reaching prohibition. An adaptation in December 1996 of UN general assembly resolution 51/45S which called upon all the countries to conclude a new international agreement prohibiting anti-personnel mines as soon as possible. The Government of Austria circulated a draft treaty to all Government and many international organizations so that there won’t be any problem and the meeting would be in peace. Normally exchange of views on the content of the Austrian draft took place in Vienna from 12th to 14th of February 1997. The government of Germany hosted a meeting inborn to discuss the verification of such a treaty on 25th and 26th April 1997. From 24th to 27th June 1997 the Belgian Government hosted the official follow up to 1996 Ottawa conference “The Brussels international conference for a total global ban on anti-personnel mines”. This was the largest ever gathering of the government to date for a conference devoted specifically to the issue of landmines where there were representatives of 154 countries. 97  countries signed the “Brussels Declaration” calling for a diplomatic conference in Oslo to formally negotiate a comprehensive ban treaty based on the Austrian draft text on the closing date.

Geneva convention

The Geneva Conventions and their additional protocols are the core of the International humanitarian law and also the body of international law that regulates the conduct of armed conflict and seeks to limit its effect. They specifically protect people who are not taking part in the hostilities like civilians, health workers, aid workers and those who are no longer participants in the hostilities like wounded and sick soldiers and prisoners of war. 

Vienna convention

This is an international agreement governing treaties between states that was drafted by the International law commission of the United Nations and adopted on May 23, 1969, and that entered into force on January 27, 1980.

The convention applies only to the written treaties between states. The first part of the document defines the terms and scope of the agreement and the second part lays out the rules for the conclusion and adopted treaties.

Contemporary Developments

From the last 1980s, the ICRC has put its energies into a measure to encourage governments to implement international humanitarian law and to teach its provisions at relevant levels within the state administration-notably. The ICRC also works with governments and national red cross and red crescent societies to promote knowledge of the law in academic circles, youth and the media.

Case: Hungary v. Slovakia, 1997, ICJ

In 1978 Hungary and Chekoslovokia signed the Danube treaty to build a dam jointly over river Danube, the construction of the dam then began. In 1989, Hungary wanted to revoke the terms and conditions of the treaty because of environmental concerns, lack of funding and also called fundamental change of circumstances. In 1993, the new nation of Slovakia started to negotiate with the Hungarian government and decided jointly to take the matter to the ICJ.

ICJ prima facie held that Hungary was liable on all the ground for not respecting the doctrine of pacta sunt servanda (agreement must be kept), and other treaty violations as contained in the Danube treaty. ICJ also found Slovakia guilty on one count. The court also held Slovakia liable for one ground, and it was the 1st in which the judges of ICJ actually want a spot to determine the environmental repercussions of the construction of the dam. 

Conclusion

The law of armed conflict looks torn between 2 contradictory impulses– the need, on to wage war effectively and the desire to protect people and property against the ravages of such warfare. The law of armed conflict tries to reconcile these impulses, in a very fundamentally pragmatic way. International humanitarian law compels States and non-State parties alike to try their utmost to guard and preserve the life, limb and property of civilians and others hors de combat (out of action due to injury), whereas at the identical time giving parties to a conflict leave to commit acts of violence among bounded boundaries.

However, once those boundaries are transgressed, once perpetrators of war crimes aren’t delivered to account for his or her transgressions, there’s a natural impulse to dismiss International humanitarian law as lacking any “real” normative force. This can be a visible response, however, it fails to understand the complexities of International humanitarian law.

Reference

1. http://iihl.org/full-list-congresses-international-conferences-round-tables-since-institutes-foundation/the-distinction-between-international-and-non-international-armed-conflicts-challenges-for-ihl
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