International Humanitarian Law

"The humanising of war? You might as well talk about humanising Hell! The
essence of war is violence! Moderation in war is imbecility! ... I am not for war, I
am for peace. – (Admiral Lord Fisher, from Sir Reginald Bacon, The Life of Lord
Fisher of Kilverstone, Admiral of the fleet, vol.1,120-1; 1929)
A- Introduction:
International humanitarian law- also known as the ‘law of armed conflict.
International humanitarian law is also known by the term: jus in bello’ which
means justice in war. According to THE INTERNATIONAL COMMITTEE OF
THE RED CROSS International Humanitarian Law is a set of international rules,
established by treaty or custom, which are specifically intended to solve
humanitarian problems for example, the treatment of prisoners of
war, civilians in occupied territory, sick and wounded personnel, prohibited
methods of warfare and human rights in situations, directly arising from
international or non-international armed conflicts. It protects persons and property
that are, or may be, affected by an armed conflict and limits the rights of the parties
to a conflict to use methods and means of warfare of their choice.
.

B- Development Of International Humanitarian Law:

The law in this area developed from the middle of the nineteenth century. In 1864,
as a result of the pioneering work of Henry Dunant,6 who had been appalled by the
brutality of the battle of Solferino five years earlier, the Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field was adopted.
This brief instrument was revised in 1906. In 1868 the Declaration of St Petersburg
prohibited the use of small explosive or incendiary projectiles. The laws of war
were codified at the Hague Conferences of 1899 and 1907.

C- Rules of International Humanitarian Law:

“...as soon as they lay down [their arms] and surrender, they cease to be enemies
or agents of the enemy, and again become mere men, and it is no longer legitimate
to take their lives.”
 i- The parties to a conflict must at all times distinguish between the civilian
population and combatants in order to spare the civilian population and
civilian property.
ii- Attacks may be made solely against military objectives.
iii- People who do not or can no longer take part in the hostilities are entitled to
respect for their lives and for their physical and mental integrity. Such
people must in all circumstances be protected and treated with humanity,
without any unfavorable distinction whatever.
iv- It is forbidden to kill or wound an adversary who surrenders or who can no
longer take part in the fighting.
v- Neither the parties to the conflict nor members of their armed forces have an
unlimited right to choose methods and means of warfare. It is forbidden to
use weapons or methods of warfare that are likely to cause unnecessary
losses or excessive suffering.
vi- The wounded and sick must be collected and cared for by the party to the
conflict which has them in its power. Medical personnel and medical
establishments, transports and equipment must be spared. The red cross or
red crescent on a white background is the distinctive sign indicating that
such persons and objects must be respected.
vii- Captured combatants and civilians who find themselves under the
authority of the adverse party are entitled to respect for their lives, their
dignity, their personal rights and their political, religious and other
convictions. They must be protected against all acts of violence or reprisal.
They are entitled to exchange news with their families and receive aid. They
must enjoy basic judicial guarantees.

D- Sources of International Humanitarian Law:

Treaties and customs are the main sources of International law. In respect to
International Humanitarian Law, the most important treaties are:
i- The Geneva Conventions of 1949: Deals respectively with the
amelioration of the condition of the wounded and sick in armed forces in
the field, the amelioration of the condition of wounded, sick and
shipwrecked members of the armed forces at sea, the treatment of
prisoners of war and the protection of civilian persons in time of war. The
Fourth Convention was an innovation and a significant attempt to protect
The Martens
Clause

Situations of
armed conflict are
not exclusively civilians who, as a result of armed hostilities or occupation, were in the
regulated by power of a state of which they were not nationals.
treaties and ii- The Additional Protocols of 1977: In 1977, two Additional Protocols to
custom but by the
principles of the 1949 Conventions were adopted. While many provisions may be seen
public conscience as reflecting customary law, others do not and thus cannot constitute
and humanity obligations upon states that are not parties to either or both of the
referred to by the
Martens Clause. Protocols.
The Martens
Clause was iii- The Hague Conventions: with Hague Law (through the Hague
outlined in the
preamble of the Conventions of 1899 and 1907) regulating how armies should conduct
1899 Hague themselves during hostilities. The IV Hague Convention is of particular
Convention and importance during occupation and sets out a definition of occupation
remains a
cornerstone of IHL which remains applicable to this day. It also sets out some of the key
understanding and principles that regulate occupation: namely the obligation to ensure
interpretation to
this day. public order and civil life, and obligation to respect of private property.

“Until a more 1- Distinction Between Civilians and Combatants:

complete code of
the laws of war is i- Definition of Civilians:
issued, the High The definition of civilians as persons who are not members of the armed forces is set forth
Contracting in Article 50 of Additional Protocol I, to which no reservations have been made. It is also
Parties think it contained in numerous military manuals. It is reflected in reported practice. This practice
right to declare includes that of States not, or not at the time, party to Additional Protocol I.
In its judgment in the Blaškić case in 2000, the International Criminal Tribunal for the
that in cases not
Former Yugoslavia defined civilians as “persons who are not, or no longer, members of the
included in the
armed forces”.
Regulations
adopted by them,
populations and ii- Definition of Combatants:
belligerents
All members of the armed forces of a party to the conflict are combatants,
remain under the
protection and except medical and religious personnel. Persons taking a direct part in
empire of the hostilities in non-international armed conflicts are sometimes labelled
principles of “combatants”. For example, in a resolution on respect for human rights in
international law, armed conflict adopted in 1970, the UN General Assembly speaks of
as they result
“combatants in all armed conflicts. The relevant treaty provisions regarding
from the usages
established combatant status are contained in;
between civilized ➢ Geneva Conventions I, Article 13(1) (2)
nations, from the ➢ Geneva Convention II, Article 13 (1) (2)
laws of humanity ➢ Geneva Convention II, Article 4A(1) (2)
and the
➢ Additional Protocol I, Article (43-44)
requirements of
the public
conscience.” iii- Definition of Armed Forces:
The armed forces of a party to the conflict consist of all organized armed
forces, groups and units which are under a command responsible to that party
 for the conduct of its subordinates. This rule is set forth in Article 43(1) of
Additional Protocol I.

a- Hors de combat Protection:

People who no longer taking part in hostilities are known as hors de combat, from
French, meaning out of combat, are immune from being directly attacked .

b- The prohibition from inflicting superfluous injuries or

unnecessary sufferings:
Parties to conflict should not use such methods of warfare that result in
superfluous injury or unnecessary sufferings, that is such an injury which is more
than the necessary for achieving military objectives, mentioned in the Article 2 of
the 1907 Hague Convention and Geneva Conventions I and IV.

International Armed Conflict:

The concept of ‘armed conflict’ is not defined in the Conventions or Protocols, although it has been noted
that ‘any difference arising between states and leading to the intervention of members of the armed
forces is an armed conflict’ and ‘an armed conflict exists whenever there is a resort to armed force
between states or protracted armed violence between governmental authorities and organized armed
groups within a state’.

The Wounded And The Sick:

The First Geneva Convention concerns the Wounded and Sick on Land and emphasizes that members of
the armed forces and organized militias, including those accompanying them where duly authorised, 18
‘shall be respected and protected in all circumstances’. They are to be treated humanely by the party to
the conflict into whose power they have fallen on a non-discriminatory basis and any attempts upon
their lives or violence to their person is strictly prohibited. Torture or biological experimentation is
forbidden, nor are such persons to be willfully left without medical assistance and care.19 The wounded
and sick of a belligerent who fall into enemy hands are also to be treated as prisoners of war. Further,
the parties to a conflict shall take all possible measures to protect the wounded and sick and ensure
their adequate care and to ‘search for the dead and prevent their being despoiled’
 In the 18th century, Jean-Jacques Rousseau made a major contribution by formulating the following principle
about the development of war between States:

“War is in no way a relationship of man with man but a relationship between States, in which individuals are
enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to
destroy the enemy State, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as
soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again
become mere men, and it is no longer legitimate to take their lives.”

In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: “(...)
civilians and
combatants remain under the protection and authority of the principles of international law derived from
established
custom, from the principles of humanity and from the dictates of public conscience.”

While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration
formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of
unnecessary
suffering, as follows:
“Considering: (...) That the only legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible
number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the
sufferings of disabled men, or
render their death inevitable.”

The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction:
“(...) the Parties to the conflict shall 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
military objectives.”

What is the difference between each of the four Geneva Conventions?

The First Geneva Convention (GCI) provides protection to wounded and sick.
The Second Geneva Convention (GCII) provides protection to the wounded, sick and shipwrecked in armed conflicts at sea.
The Third Geneva Convention (GCIII) provided protections for Prisoners of War.
The Fourth Geneva Convention (GCIV) provides protection to civilians in armed conflict, including those living under occupation.

Historical Development
The first Geneva Convention, which comprises a mere ten articles, was adopted in 1864 by twelve nations in order to give protection to wounded and
sick soldiers in times of armed conflict on land.
In 1929, a second treaty was drafted giving protection to the wounded, sick, and shipwrecked in armed conflict at sea. After the atrocities committed
against prisoners during the First World War, the international community adopted the third Geneva Convention in 1929 to give protection to the
treatment of prisoners of war (POWs).
The limitations of the law and of its implementation were starkly highlighted during the Second World War, and as a result, in 1949 the first three
were revised and for the first time a fourth convention was adopted to give specific protection to civilians in armed conflict, including extensive
protections to those populations living under occupation.