Introduction to International Humanitarian Law
International Humanitarian Law is a branch of International Law that seeks, for humanitarian reasons, to protect civilians and persons no longer participating in hostilities, and restrict the means and methods of warfare.
War is close in age to human association. From conflicts caused by disputes over territorial boundaries, to crisis over ownership of natural resources.
But the cause of war is not as important as its consequences. Like Betrand Rusell said, “War does not determine who is right – only who is left.”
If fighters and other participants in the conflict are the only ones affected by it, then we might hold our peace. It is not so. Civilians, including those who only want to go about their normal lives, are also victims of conflicts.
Like Henry Dunant, we must care for the fighters also. Their participation in conflict should not mean an end of the respect for their humanity. If they are wounded, sick or no longer participating in hostilities, they should be cared for and treated well. And when they die, they must be protected from pillage or ill treatment.
Why International Humanitarian Law?
Can wars not be fought with any means possible? Should the objective of war not be complete annihilation of the enemy? No. Wars should be fought with only the necessary means. And the objective of war must be to subdue not expunge the other party.
Care and conflict must co-exist for the protection of civilians and their properties, together with soldiers that are hors de combat (no longer fighting).
Before the advent of IHL, some traditional practices reflected these cautions in warfare. For example, the Indian Manusmṛti, that is, the Laws of Manu, composed between 200 BCE and 200 CE, prohibited the use of barbed or poisoned weapons. It also provided care for wounded and surrendering soldiers.
Other ancient texts such as the Bible and the Quran contain rules promoting respect for the other party in conflict. An example can be found in 2 Kings 6, where Prophet Elisha advises the King of Israel concerning some captured Syrian soldiers.
Much later, the Lieber Code of 1863 set out rules of conduct during hostilities for Union soldiers throughout the U.S. Civil War. It was the first modern codification of the laws of war and had a significant influence on subsequent codifications.
What is International Humanitarian Law?
International Humanitarian Law is a branch of International Law that seeks, for humanitarian reasons, to protect civilians and persons no longer participating in hostilities, and restrict the means and methods of warfare.
Loss of civilian lives, as well as damage to civilian properties, is quite inevitable in warfare. Nevertheless, such loss can be alleviated with the application of the right legal framework. Suffering of fighters, combatants or belligerents can also be lightened.
The means of warfare refer to weapons that are used in hostilities, while methods refer to tactics. Both means and methods are regulated by IHL for the sake of protected persons.
Terms such as ‘International Humanitarian Law’, ‘Law of armed conflict’ and ‘law of war’ can be used interchangeably.
International Law is Preventive and Regulatory
One significant characteristic of international law, unlike domestic legislations, is that it can be both preventive and regulatory.
Michael Ibanga notes that ‘when domestic law prohibits affray, it does not at the same time make rules regulating it.’ This narrative differs from what is applicable in the international framework.
States, who are the major entities in international law, tend to have opposing claims which can result in conflicting interests. And war has always been one way to pursue their foreign policy.
The attempt to outlaw war is a recent but notable development. Article 2 (4) of the United Nations Charter prohibits the use of force or threat of force in international relations.
It provides that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
Also, the Kellogg-Briand Pact was an agreement to outlaw war signed on August 27, 1928. It is also called Pact of Paris, or officially, the General Treaty for Renunciation of War as an Instrument of National Policy.
However, when war occurs, international law does not leave it unattended to. IHL steps in as that aspect of public international law that regulate the conduct of hostilities and the means and methods of warfare.
Jus ad bellum and jus in bello
Jus ad bellum and jus in bello are two unavoidable terms in discussions around the laws applicable in situations of armed conflict. They are distinct. IHL is synonymous with Jus in bello.
Jus ad bellum simply refers to conditions under which states may resort to war. It is the right of states to participate in armed conflict. The core ingredients of jus ad bellum include the prohibition on the use of force under the United Nations Charter (see above) and the exceptions to it.
The Charter sets out two exceptions to the prohibition of the use of force, namely, self-defence under Article 51 and the authorisation of force by the UN Security Council.
Jus in bello, on the other hand, translates “right (conduct) in war”. It regulates the conduct of parties involved in armed conflict. Jus in bello, or IHL, seeks to minimize the suffering of victims of hostilities by regulating the conduct of warfare.
Applicable laws in armed conflict
The law of armed conflict is made up of customary international humanitarian law and treaty law.
Customary international humanitarian law (IHL) emanated from general practice accepted as law among states.
Jean-Marie Henckaerts and Louise Doswald-Beck authored the 2005 study Customary International Humanitarian Law by the International Committee of the Red Cross (ICRC). This study codified the main principles governing armed conflict.
The major treaty laws in IHL are the Four Geneva Convention of 1949, together with the two Additional Protocols of 1977.
About Author
Fondly called ‘Lawglobal’, Inioluwa Olaposi is the CEO and founder of LawGlobal Hub. He is a graduate of Obafemi Awolowo University, seasoned writer, and an award-winning mooter. He pours his time into making access to legal information easier for legal practitioners and everyone.
