Basic Rules of IHL (International Humanitarian Law)
The basic rules of International Humanitarian Law are distinction, proportionality, precaution and the prohibition on the infliction of unnecessary suffering. These rules strike a balance between military necessity and respect for humanity in situations of armed conflict.
Understanding IHL requires appreciating its basic rules. IHL does not proscribe violence, attack or even destruction. These elements are inevitable results of armed conflict. IHL, however, makes sure that the dignity of persons as humans is preserved even in warfare or armed conflict.
Therefore, under IHL, attacks are restricted to persons directly participating in hostilities. Also, weapons that can be used are limited to forestall indiscriminate attacks and superfluous injury. This simple fact is well contained in the St Petersburg Declaration of 1868, which states 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;
That the employment of such arms would, therefore, be contrary to the laws of humanity;”1
Military necessity in armed conflict permits belligerents to engage in violence or harm. However, the aim of such attacks is to weaken the military of the enemy and achieve partial or total submission. This objective is obtainable through legitimate attacks directed at persons directly participating in the conflict. And when they cease to directly participate, the attack must cease.
Jean-Jacques Rousseau, a Genevan philosopher and writer, puts it thus:
“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 all, the goal of IHL is very simple, it is: ensure respect for humanity, restrict the violence of warfare to specific persons (direct participants), and restrict weapons that can be used against these person to those that do not cause unnecessary suffering. For example, laser weapons that are designed to cause permanent blindness to unenhanced vision is prohibited under IHL.
War is usually despicable. Like General Dufour said to Henry Dunant, “We need to see, through examples as vivid as those you have reported, what the glory of the battlefield produces in terms of torture and tears.” However, wars can be fought within the boundaries of humanity. This is the sole goal of IHL. Like Martens Clause reads:
“Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience.” (Emphasis mine).
From this understanding, the basic rules of international humanitarian law can be highlighted as follows:
Distinction
The rule of distinction is at the core of IHL. It ensures that attacks are directed only at persons directly participating in hostilities and military objectives. These persons include combatants, fighters of a non-State armed group, and civilians who directly participate in hostilities. Combatants who are hors de combat must not be attacked.2
According to the rule of distinction, legitimate attacks under IHL can only be directed at military objectives. Civilians and civilian objects must never be the object of attacks. In other words, there is a total prohibition of violence against civilians or civilian objects.
Article 48 of the 1977 Additional Protocol I (AP I) provides that; “In order to ensure respect for and protection of the civilian population and civilian objects, 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.”
Similarly, Article 52 of AP I provides that Civilian objects shall not be the object of attack or of reprisals. And that Attacks shall be limited strictly to military objectives.
Also, Rule 1 of Customary International Humanitarian Law (CIHL) embodies the Principle of Distinction between Civilians and Combatants. It states that: “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”
Thus, attacks that do not distinguish between combatants and civilians (or indiscriminate attacks) are prohibited under IHL. In the same vein, weapons that cannot facilitate such distinction (or indiscriminate in nature) are also not allowed. For example, Anti-personnel landmines are prohibited.
The protection of civilians in armed conflict has also been emphasised in case law. In Prosecutor V Kupre & Ors, for example, the International Criminal Tribunal for the former Yugoslavia (ICTY), held that: “The protection of civilians in time of armed conflict, whether international or internal, is the bedrock of modern humanitarian law.”3
Proportionality
The rule of proportionality dictates that the harm (or potential harm) caused to civilians in a military attack must not outweigh the anticipated concrete and direct military advantage.
In simple terms, the principle of proportionality recognises that harm towards civilians may be inevitable in armed conflict. This harm is described as “collateral damage”.
While civilians must not be targeted under Distinction, Proportionality makes sure that when they are affected in a legitimate military attack, the effect remains proportional to the military advantage anticipated.
For instance, if there are fifty civilians and five combatants in a specific location (military target), it may be disproportionate to attack such place seeing that the number of civilian casualties that may result will outweigh the direct and concrete military advantage. The case would be different if there were fifty combatants and five civilians. Such an attack may be proportional.
Article 51(5)(b) of AP I provides that an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is to be considered as indiscriminate.
Proportionality can, however, not be used as an excuse to attack civilians or civilian objects, except such an object has lost its protection.
Thus, proportionality is not about the weapons used on both sides of a conflict being similar or proportionate. It is about balancing the possible damage to civilians with the concrete and direct military advantage anticipated.
Rule 14 of CIHL clearly provides that: “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”
Precaution
The principle of precaution provides that a party to an armed conflict must take steps to minimize harm to civilians and civilian objects. While collateral damage is permitted under the principle of proportionality, the rule of precaution helps to holistically assure that constant care is taken to spare civilians or civilian objects.
Thus, in the hypothetical situation painted above of fifty soldiers and five civilians being in a location, precaution may demand that the kind of weapon adopted for an attack on such location would be one that can spare civilians.
Article 57 of AP I provides expressively for precautions in attack. Article 58 also provides that parties to an armed conflict must take precautions to protect civilians and civilian objects under their own control against the effects of military attacks. This is also provided for under Rule 22 of CIHL.
The rule of precaution in situations of hostilities captures locating military objectives away from the civilian populations, giving effective warnings before an attack, distinguishing combatants from civilians, and choosing means and methods of warfare that spare civilians.
Prohibition on superfluous injury or unnecessary suffering
That combatants may be the object of attack does not mean any means of attack or weapon can be used against them. International Humanitarian law prohibits the use of weapons, projectiles or methods of warfare that can cause superfluous injury or unnecessary suffering. (Rule 70, CIHL)
In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996, the International Court of Justice defined unnecessary suffering as “harm greater than that unavoidable to achieve legitimate military objectives”.
The prohibition of superfluous injury is based on several treaties, including: The St. Petersburg Declaration, The Hague Declarations and Regulations, The Geneva Gas Protocol, Additional Protocol I, and The Convention on Certain Conventional Weapons.
The Convention on Certain Conventional Weapons, for example, lays down the rule against targeting
soldiers’ eyes with lasers. Causing deliberate permanent blindness is therefore an infliction of superfluous injury or unnecessary suffering.
1See the Preamble, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868.
2Combatants no longer participating in hostilities. These may be the wounded, sick, shipwrecked, prisoners of war, or those that have surrendered.
3Prosecutor v. Kupre, Case No: IT-95-16-T, (Jan. 14,2000), Para. 521, p. 204.
Image Credit: Fiji Red Cross Society
About Author
Inioluwa Olaposi is a graduate of Obafemi Awolowo University, Ile-Ife. He was part of a team of three that won the National International Humanitarian Law Moot Competition for Nigerian Universities and subsequently participated in the All-Africa Regional Rounds at Nairobi, Kenya.
