(IHL) | The Basics of International Humanitarian Law
keywords – IHL, Humanitarian law, Human Rights, International Law
Written By – Sangamithra S
Introduction
International humanitarian law (IHL), also referred to as “the law of war” or “the law of armed conflict,” aims to protect those who are not currently or have stopped taking part in hostilities while simultaneously limiting the repercussions of armed conflict. Only after conflict has broken out does the law take effect, and it does so equally for all parties, regardless of who initiated hostilities.
IHL shields some groups of individuals from the consequences of conflicts. These include:
• Those who are injured, ill, or shipwrecked, whether they are military personnel or civilian;
• Religious and medical personnel, whether they are military or civilian;
• Those who are detained as a consequence of hostilities, including prisoners of war; and
• Civilians.
Brief History of IHL
Although there have always been moral, ethical, and legal restrictions on the use of force, battle has historically been cruel and frequently merciless. Humane individuals (like Francis Lieber, Tsar Alexander II, and Henri Dunant) set out to limit the means and methods of warfare and to impose laws safeguarding war victims in many parts of the world in the middle of the 19th century. With each major fight that followed, new treaties were drafted in the hope that the horrors just witnessed may be avoided in the event of future conflicts. Unlike in the past, when the laws and customs of war were few in number and briefly stated, there is now a substantial and in-depth body of legislation. The foundations of present-day International Humanitarian Law (IHL) are based on the Geneva Laws and The Hague Laws.
Sources of IHL
The four Geneva Conventions (GCs) (1949), which offer protection to specific groups of vulnerable people, and the Hague Convention (1907), which places limitations on the means and techniques of warfare, are the two primary treaty sources of international humanitarian law. Humanitarian protection and support are particularly relevant to the Fourth Geneva Convention (Protection to Civilians), created to stop future conflicts from causing human suffering on the same scale as the two World Wars.
The first two Protocols Additional to the Geneva Conventions on the protection of civilians (1977) further develop the two branches of law covered by the Hague and Geneva Conventions. They are known as Additional Protocol I (AP I), which regulates international armed conflict, and Additional Protocol II (AP II), which regulates non-international armed conflict.
Due to their universal ratification, the four Geneva Conventions now have international applicability. However, there is still a long way to go before the Additional Protocols are broadly accepted. The protocols are not currently signed by India and a number of other key military powers.
The Two Principles
Military necessity and humanity are the two main principles that IHL attempts to balance. The parties to a conflict may only use the means and procedures required to accomplish the conflict’s legitimate military goal and as permitted by IHL under the principle of military necessity. As a result, the parties are only permitted to employ the amount and type of force necessary to defeat the enemy as soon as feasible with the least possible loss of life and resources. A conflict’s parties are prohibited by the concept of humanity from causing any pain or devastation that is not necessary to attain the conflict’s lawful goals.
Distinction, Proportionality and Precaution
By regulating the conduct of military operations, IHL aims to safeguard civilians during periods of conflict. It bases itself on three principles:
- Distinction: Only military targets and fighters may be attacked by a party to an armed conflict. The distinction between combatants and military targets on the one hand, and civilians and civilian objects on the other shall be made. Indiscriminate attacks and direct assaults on civilians and civilian objects are forbidden.
- Proportionality: Damage to civilians and the incidental loss of civilian life and property should not be excessive in comparison to the immediate and tangible military gain that a strike is expected to provide.
- Precaution: The parties shall always exercise prudence when conducting military operations so as to protect civilians and civilian property. This may entail verifying that a target is actually a military objective or notifying the populace adequately before an attack.
Applicability of IHL
Only during armed conflict does IHL apply. It provides two protection mechanisms: one for international armed conflict and the other for non-international armed conflict. It does not apply to instances of disturbances and tensions (such riots and sporadic, isolated acts of violence), which are controlled by domestic law and human rights law.
The use of armed force by one or more States against another State or States is referred to as an international armed conflict (IAC). The same laws that govern IACs also apply to occupation, wars of national liberation (under certain conditions), and armed conflicts between one or more States and an international organisation (i.e., a multinational force). Conflicts between governmental armed forces and one or more non-State armed groups, or between such groups themselves, that occur within the borders of a single State are referred to as non-international armed conflicts (NIACs).
The four Geneva Conventions and Additional Protocol I are just a few of the many laws that apply to international armed conflicts. For non-international armed conflicts, there are less restrictions as outlined in Additional Protocol II as well as Common Article 3 of the Four Geneva Conventions.
Conclusion
Most of the IHL treaty principles have also evolved into international legal norms known as customary law. Hence, they are applicable to all States, even those that are not signatories to the pertinent treaty. On the flip side, IHL is frequently criticised for “legitimising violence” because it is a regulation that forbids needless suffering rather than suffering itself. If they are disproportionate, incidental civilian casualties are prohibited; otherwise, they are allowed. Even in unfair situations, it enables soldiers to kill their adversaries. When this is required by military necessity, it permits states at war to interfere with numerous rights and freedoms that individuals enjoy in peacetime. But, the fact that IHL provides a crucial framework of what must be respected by parties engaging in warfare is indeed indubitable.
References
Haider, H. (2013). International legal frameworks for humanitarian action: Topic guide. Birmingham, UK: GSDRC, University of Birmingham
International humanitarian law – international committee of the Red Cross. (n.d.). Retrieved August 11, 2022, from https://www.icrc.org/en/download/file/40569/en_-_handbook_humanitarian_law_-_web.pdf
Madziwa, E. (n.d.). International humanitarian law notes. Academia.edu. Retrieved August 11, 2022, from https://www.academia.edu/42879805/International_Humanitarian_Law_Notes
Riordan. (2017). United Nations – Office of Legal Affairs. Retrieved August 11, 2022, from https://legal.un.org/avl/studymaterials/rcil-laac/2017/book1_2.pdf
