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CHAPTER 1

International Humanitarian Law: Introduction

Introduction

War is as old as human civilization and the laws of war are probably as old as war itself. There has always been a general understanding of the necessity of having some kind of regulations during wars. There has also been a feeling that under certain circumstances, human beings, whether friends or foes, deserve some protection. In the wars fought around the world in ancient times, there was evidence of interesting customs and agreements with "humanitarian" elements. There were rules protecting certain categories of victims of armed conflicts, as well as regulations prohibiting the use of certain means and methods of warfare. These ancient customs might not have been adopted for a humanitarian purpose but with a purely tactical or economic objective; their effect was, however, humanitarian. For instance, the "prohibition to poison water bodies" was a customary practice and reaffirmed in modern treaties. Perhaps the main reason for the "prohibition to kill prisoners of war" was to guarantee the availability of future slaves, rather than to save the lives of former combatants. The existence of such customs can be found in cultures, regions and civilizations as diverse as Asia, Africa and Europe.

In Asia, the ancient scriptures are replete with detailed rules on waging a war, the area where a war will take place, methods of warfare, of the use of force, kinds of armed forces, weapons to be used, and so on. Weapons causing unnecessary suffering were prohibited and there were rules relating to the treatment of prisoners and civilians. All these rules were based on respect for human beings and considerations of humanity.

Sun Tzu, in The Art of War, the foremost classic of Chinese literature on military strategy, written around B.C. 500, spoke of some important requirements relating to humanity during combat: a commander must show intelligence, sincerity, humanity, courage and dignity; he may utilize captured enemy equipment but must respect prisoners of war; he should endeavour to win the victory without harming enemy military and civilian personnel and should avoid using needless violence; and he should not seek the total annihilation of an enemy. The principle of civilian protection was also accepted in the Japanese and Chinese traditions. There are numerous references to the protection of civilians, and specifically women and children, in the Asian texts. Similarly, Islamic tradition favours respect for the principle of civilian protection. The Prophet showed his disapproval of the killing of the old and women and children.

Manu Smriti, one of the oldest and probably the most important of the Smritis, contains the laws (conduct in life) that need to be followed in various orders of life and by persons of various tendencies (varnas). Some examples of 'smritis' relating to the laws of war are follows.

When he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.

Let him not strike one who (in flight) has climbed on an eminence, nor a eunuch, nor one who joins the palms of his hands (in supplication), nor one who (flees) with flying hair, nor one who sits down, nor one who says 'I am thine';

Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight, nor one who is fighting with another (foe);

Nor one whose weapons are broken, nor one afflicted (with sorrow), nor one who has been grievously wounded, nor one who is in fear, nor one who has turned to flight; (but in all these cases let him) remember the duty (of honourable warriors).

Smaller kingdoms in the past, like the Meitei Kingdom (now known as Manipur) had written humanitarian tradition in the form of puya or manuscript called Chainarol that lays down the sacred code of conduct which two warriors in personal conduct are expected to follow.

In Europe, in 1590, the Free Netherlands adopted Articles of War. In 1621, Sweden's Adolphus published his Articles of Military Lawwes to Be Observed in the Warres, which were to become the basis for England's later Articles of War. Those English Articles, in turn, became the basis for the United States' first Articles of War. The 1648 Treaty of Westphalia was the first treaty which required the exchange of captured soldiers.

Religious figures, powerful Kings, wise men and warlords from all continents have attempted to limit the consequences of war by making binding rules. In spite of their humanitarian importance, the ancient rules and customs suffered from serious drawbacks. First, their applicability was limited to specific regions; secondly they were very often limited to a specific war; and thirdly, their implementation was the sole responsibility of the belligerents. In the last 150 years or so, international rules have been made to limit the effects of war for humanitarian reasons. Usually called international humanitarian law (IHL), it is also known as the 'law of war' or the 'law of armed conflict'.

International Humanitarian Law

IHL is a branch of international law which limits the use of violence in armed conflicts. IHL achieves this by: (i) sparing those who do not or no longer directly participate in hostilities (for example civilians; injured, sick or wounded soldiers; or those who have surrendered or been taken prisoners of war; and (ii) limiting the violence only to weaken the military potential of the adversary--the amount necessary to achieve the aim of the conflict.

IHL can be defined as the whole of the international conventions or customary rules which are specifically intended to regulate humanitarian problems arising directly from both international or non-international armed conflicts, and which restrict the right of parties to the conflict to use means and methods of warfare of their choice and to protect people and objects affected by the conflict.

IHL is applicable in international armed conflicts as well as non-international armed conflicts. An international armed conflict means fighting between the armed forces of at least two States. A non-international armed conflict (or internal armed conflict) means fighting on the territory of a State between the regular armed forces and identifiable armed groups, or between armed groups. To be considered a non-international (or internal) armed conflict, fighting must reach a certain level of intensity and extend over a certain period of time. The provisions of Common Article 3 of the Geneva Conventions and Additional Protocol II apply in situations of non-international armed conflict. Internal disturbances in a country, riots, and struggles between factions or against the authorities are not considered non-international armed conflict. These situations are covered by the municipal law of the country.

IHL and International Law

IHL is part of the body of international law that regulates relations between states. It is difficult to answer as to when international law originated. However, if we consider international law as a set of substantive principles applying uniquely to 'states', then the seventeenth century could be considered as the starting time. International law establishes four criteria that must be established for an entity to be regarded as a State: (i) a defined territory; (ii) a permanent population; (iii) a government; and (iv) the capacity to conduct international relations. Under international law, a State has sovereignty over its territory and exercises authority over its nationals. It has the status of a legal person, with the capacity to make contracts, enter into international agreements and become a member of international organizations. The State also has the capacity to join with other states in making international law. For states to co-exist in an international community, they are obliged to follows certain norms: to refrain from intervening in the affairs of other states, to settle international disputes peacefully, to refrain from threat or the use of force, and to carry out treaty obligations in good faith. The chart on Page 6 shows the relationship between international law and IHL.

The Statute of the International Court of Justice, in Article 38, lists the main sources of international law as: international conventions, international customs and general principles of law in accordance with which the Court decides disputes. It further states that judicial decisions and the teachings of the most highly qualified publicists of various nations are subsidiary means for the determination of the rules of law. Though Article 38 of the Statute does not provide a hierarchy among the main sources of international law, there is a common belief that treaties are the most important sources of international law. Customary international law has historically preceded treaty law and has been a source of principles on which future treaties are based. For example, different traditions prohibit certain types of weapons, particularly poison, and this prohibition is now embodied in a number of important international treaties.

The Sources of IHL

A. Customary Law

The origin of IHL, in fact, lies in the customs and usages followed by armies to minimize the miseries of war from ancient times. Many of the rules of IHL are considered part of customary international law and, therefore, mandatory for all parties to an armed conflict. Customary IHL fills in certain gaps in the protection provided to victims of armed conflict by treaty law. These gaps result either from the lack of ratification of relevant treaties or from the lack of detailed rules on non-international armed conflicts in treaty law. The advantage of customary law is that it is not necessary for a State to formally accept a rule in order to be bound by it, as long as the overall State practice on which the rule is based is accepted as law. Although most of IHL has now been codified in treaties, important aspects of belligerent activity, especially in naval warfare, continue to be regulated by customary law.

Customary IHL restricts the ability of States to opt out of the rules and adds to their morally binding character as they are seen as being embedded and deeply rooted in community values. An excellent example of this process is the 'Martens Clause', which was drafted by Feodor Martens in the preamble to the 1899 Hague Convention II. In addition, customary law rules are not restricted in their field of application. Many of them apply to all forms of conflict, whether international or non-international. The customary law rules of IHL bind all belligerents on both sides of a conflict. They also fill the gaps that exist in the treaty rules applicable in noninternational armed conflicts, including targeting, proportionality, precautions in attack and the protection of civilians and civilian property.

Customary IHL continues to provide an important framework for the conduct of hostilities, including in recent armed conflicts in Iran, Afghanistan and Sri Lanka, and between Israel and Lebanon. In coalition warfare in Afghanistan, customary IHL represents the common rule applicable to all coalition partners. Joint operations must comply with the rules of customary IHL, although individual partners may still have wider obligations under the respective treaties they have ratified. The Rome Statute of the International Criminal Court is a good example of the crystallization of customary rules. Many of the components of crimes against humanity and war crimes were articulated for the first time in treaty form in the Rome Statute. The drafters of the Statute referred to customary law in formulating these crimes.

Advantages of Customary Rules of IHL: Custom is the oldest and the original source of international law as well as of law in general. Customary rules have the advantage that they do not require any express act of ratification or further acceptance by States. The following are the advantages of customary rules.

• The customary rules of IHL bind all those who participate in armed conflict, whether they are parties to a specific treaty or not. They bind all belligerents on both sides of a conflict.

• Customary rules are not restricted in their field of application. Many of them apply to all forms of conflict, whether international or non-international.

• Customary rules fill the gaps that exist in the treaty rules applicable in noninternational armed conflicts, including targeting, proportionality and precautions in attack.

• They also greatly strengthen the weaker areas of treaty law, such as the protection of civilians and civilian property in times of internal armed conflict.

• The customary rules of IHL are particularly important and relevant to regions prone to situations of armed violence and countries have a weak record of ratification of IHL treaties.

International law is continuously evolving. The existing treaties may not always accurately reflect the current status of the law. Because of the challenges associated with relying on treaties, customary law plays an important role. Customary norms develop through state practice and opinio juris (an opinion of the law). As this process is more flexible than that involved in treaty negotiation and ratification, it helps international law to keep pace with the dynamic and fast-paced world it regulates. Many of today's armed conflicts occur outside the framework of the Geneva Conventions and their Protocols. In such conflicts, customary IHL takes on added importance.

The ICRC Study: In December 1995, the ICRC was mandated to prepare a report on customary rules of IHL applicable in international and non-international armed conflicts. In 2005, after extensive research and widespread consultation among experts, the ICRC study on customary IHL was released. Volume 1 of the study dealing with Rules contains a comprehensive analysis of the customary rules of IHL applicable in international and non-international armed conflicts. The 161 rules have been catalogued in six parts: (i) Principle of distinction, (ii) specifically protected persons and objects, (iii) specific methods of warfare, (iv) weapons, (v) treatment of civilians and persons hors de combat, and (vi) implementation. Of the 161 rules identified, 159 apply in international armed conflicts and 149 in non-international armed conflicts. The rules are accompanied by a commentary which explains why the rule in question was found to be customary. Volume 2 is in two parts and mentions relevant state practice, including legislation on each aspect of IHL.

Contribution of the International Court of Justice to IHL: The International Court of Justice (ICJ), as the principal judicial organ of public international law, contributes to the understanding of the fundamental values of the international community expressed in IHL. Judicial decisions as such are not a source of law, but the dicta by the International Court of Justice are considered as the best formulation of the content of international law in force. The ICJ has dealt the questions of humanitarian law in two important cases: the Judgment of 27 June 1986 concerning Military and Paramilitary Activities in and against Nicaragua and the Advisory Opinion delivered ten years later on 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons.

In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ acknowledges the basic unity of IHL. It makes clear that this branch of international law contains both the rules relating to the conduct of hostilities and those protecting persons in the power of the adverse party. The Court concluded: "These two branches of the law (The Hague Law and Geneva Law) applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law". According to Judge Weeramantry:

Humanitarian law and custom have a very ancient lineage. They reach back thousands of years. They were worked out in many civilizations — Chinese, Indian, Greek, Roman, Japanese, Islamic, modern European, among others. Through the ages many religious and philosophical ideas have been poured into the mould in which modern humanitarian law has been formed. They represented the effort of the human conscience to mitigate in some measure the brutalities and dreadful sufferings of war. In the language of a notable declaration in this regard (the St. Petersburg Declaration of 1868), international humanitarian law is designed to 'conciliate the necessities of war with the laws of humanity'.

The ICJ in the Case concerning Military and Paramilitary Activities in and against Nicaragua held that the four Geneva Conventions of 12 August 1949 are reflective of customary law and as such universally binding. The Court explained: "The denunciation shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience."

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Excerpted from "The Law of Armed Conflict"
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Copyright © 2017 Wg Cdr (Dr) U C Jha.
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