International Humanitarian Law and its Principles

Definition
International Humanitarian Law is a set of rules which seek to limit the effects of armed
conflict for humanitarian reasons. It protects people who are not or are no longer
participating in the hostilities and is a means to restrict the means and methods of
modern warfare. International humanitarian law is also known as the law of war or the
law of armed conflict.

Codification of International Humanitarian Law

A major part of International Humanitarian Law is contained in the four Geneva
Conventions of 1949. Almost every nation in the world has agreed to be bound by them.
The conventions have been developed and supplemented by two other agreements: the
Additional Protocols of 1977 relating to the protection of victims of armed conflicts.
Other agreements prohibit the use of certain weapons and military tactics and protect
certain categories of people and goods. These agreements include:
1. The 1954 Convention for the Protection of Cultural Property in the Event of Armed
Conflict, plus its two protocols;
2. The 1972 Biological Weapons Convention;
3. The 1980 Conventional Weapons Convention and its five protocols;
4. the 1993 Chemical Weapons Convention;
5. the 1997 Ottawa Convention on anti-personnel mines;
6. the 2000 Optional Protocol to the Convention of Rights of the Child on the
Involvement of Children in Armed Conflict;

Fundamental Principles of International Humanitarian Law

1. The Principle of Humanity:

The absence of the principle of humanity during the battle of Solferino of 1859
was the central notion which inspired the founder of the International Committee
of Red Cross(ICRC), Henry Dunant. The principle states that all humans have
the capacity to show respect and care for all, even their enemies. Many rules of
IHL are inspired by this principle, specifically those setting out protections for the
wounded, sick and prisoners of war. It is quoted in the Martens Clause. An
example case would be ‘Columbia, Special Jurisdiction for Peace, Extrajudicial
Executions in Casanare’, the ruling of the Chamber of Special Jurisdiction for
Peace in Columbia on the members of Colombia’s National Army, state agents
and civilians accused of the wilful killing of 296 people and presenting them as
fighters killed in combat in Casanare during the years 2005 and 2008. The
 Judicial Panel analysed IHL and other laws, where the principle of humanity is
one of the major principles that was taken into account when interpreting the
conduct of the National Army in the context of the NIAC(National Immunisation
Advisory Committee) and identifying the war crimes and crimes against humanity
committed.

2. The Principle of Distinction:

The principle of distinction between civilians and combatants, and between
civilian objects and military objectives. The principle of distinction provides that
parties to an armed conflict must “at all times distinguish between the civilian
population and combatants and between civilian objects and military objectives
and accordingly shall direct their operations only against the military objectives”.
This implies that indiscriminate attacks and the use of indiscriminate means and
methods of warfare are prohibited. The legal sources for the principle regarding
‘the obligation to distinguish between legitimate targets and civilians and between
the military objectives and civilian objects’ are stated in PI,48; PI,52; CIHL, 1 and
7; ‘the obligation of combatants to distinguish themselves’ are stated in GCIII,
4/A(1) and (2); PI, 44/3; CIHL, 106. An example case of the consideration of this
principle is Israel/Gaza Operation Cast Lead, the aim of the operation was
striking infrastructures, used for terror activities and rocket fire from Gaza Strip
targetting Israeli civilians.

3. The Principle of Proportionality:

The principle of proportionality prevents attacks against military objectives which
are expected to cause incidental loss of civilian lives, injury to civilians and
damage to civilian property or a combination of thereof, which would be
excessive to the concrete and direct military advantage anticipated. Therefore
the principle seeks to limit the damage caused by military operations by requiring
that the effect of means and methods of warfare used must not be
disproportionate to the military advantage sought. The legal sources for the
principle of proportionality are stated in PI, 51/5b; CIHL, 14. This principle was
taken into consideration in the Israel/Gaza Operation Cast Lead ruling in Part-1,
Paras. 120-126, 230-232.

4. The Principle of Military Necessity:

The principle of military necessity permits measures which are actually
necessary to accomplish a legitimate military purpose and are not otherwise
prohibited by international humanitarian law. In the case of an armed conflict, the
only legitimate military purpose is to weaken the military capacity of the other
parties to the conflict. The principle is outlined in Chapter 9, II. 4. Definition of
military objectives; Chapter 13, State Responsibility, IX. 2. c) bb) no defence of
necessity; Chapter 13, X. 3. Defences, c) defence of necessity. An example case
of this principle being used is the United States/United Kingdom, Report on the
Conduct of the Persian Gulf War.