International Humanitarian Law: A Brief Presentation of its Purpose

“All is fair in love and war”

John Lyly is wrong in saying that, wars in fact do have rules. This article aims to clarify international humanitarian law (“IHL”), and what is designated as the law of armed conflicts (“LoAC”). We must first specify that humanitarian aid is not IHL, this is a common point of confusion. The realm of application of IHL is war or more precisely armed conflicts; this can be international (between two countries) or non-international (one of the belligerents is not a state, or in fact it is the state fighting against itself). Different regulations apply to the two types of armed conflicts, but because we want this article to be brief and clear we will not spend time on this distinction.

The prohibition of the use of force is the cornerstone principle of international law as can be found in Article 2 para 4 of the Charter of the United Nations:

“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.”

The exceptions to the principles are found in the subsequent Chapter VII of the Charter. However, international humanitarian law represents a sadly realistic voice: war will happen. It is not IHL’s aim to judge the legality of the use of force when it happens but to regulate it when it happens.

In IHL, the premise is that the normal protection of human rights doesn’t stand. Indeed, human rights will be violated in armed conflicts, rights such as the right to life, right to peace, and right to security. IHL provides for the protection of human rights but also the environment and particular monuments (such as historically significant buildings) in those times.

The guiding principles of IHL are the principle of distinction, the principle of military necessity, the principle of unnecessary suffering, the principle of proportionality and the principle of humanity.  Therefore, every jus in bello decision can be examined in the light of those principles which are intertwined and thus indicate any violations of IHL.

The principle of distinction, aka discrimination, is the combatant’s most important principle. Customary International Humanitarian Law Rule 1 states:

“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.”

The status of civilian is to be presumed and does not require the bearing of any distinctive sign contrary to combatants. This distinction between individuals (civilian/combatant) also applies to objects. Indeed, attacks may only be directed against military objectives. A legitimate military objective must, upon capture or neutralisation, provide the belligerent with a definite and direct military advantage.

Attacks must not be directed against civilian objects. The International Criminal Tribunal for Yugoslavia in The Prosecutor v. Stanislav Galić, [2003] provided insight into what would constitute a violation of distinction:

“The offender willfully made the civilian population or individuals civilians not taking part in hostilities the object of those acts of violence. The notion of ‘willfully’ incorporates the concept of recklessness, whilst excluding mere negligence. […] the Prosecution must prove […] that the attack was launched willfully and in the knowledge of circumstances giving rise to the expectation of excessive civilian casualties.”

However, the principle is not absolute. For instance, the destruction of private property can be authorised if ‘rendered necessary by military operations’, there are also other exceptions, but they must obey the proportionality principle.

The principle of military necessity has been described as early on as the Lieber Code (1863) as being battlefield violence counterbalanced by humanitarian considerations. This principle is from customary law and is mentioned in the Geneva Conventions and its Additional Protocols, but is undefined by those instruments. The battlefield commander is responsible for determining what constitutes ‘military necessity’. The actions must be taken in good faith and be reasonable (would a reasonably prudent commander acting in conformance with the law of armed conflicts, knowing what the suspect commander knew, have acted in similar circumstances?).  Some have used the Kriegsraison doctrine to provide that military necessity in war overrides the law, but this doctrine is obsolete and there is no unlimited application of the military necessity doctrine.

The principle of unnecessary suffering is applicable to combatants (Additional Protocol I Article 35.2). The principle intends to limit the suffering of opposing combatants, this will often relate to weaponry. The question of the yardstick of suffering is often debated but an accepted test is ‘whether the suffering caused is out of proportion to the military advantage gained’. Also, the notion of pain is distinguishable from the one of unnecessary suffering. This question is complicated as there is no black letter rule on the matter.

The principle of proportionality aims to balance the human lives of civilians and the destruction of an enemy target. Article 51(5) of Additional Protocol I gives a definition:

“Proportionality violation is an attack which may be expected to cause incidental loss of civilians 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.”

Proportionality involves the notion of ‘collateral damage’, here we have a relation of the proportionality principle with military necessity and distinction. What will be retained is the intent of the ‘shooter’. Proportionality tends to entail a certain amount of subjectivity, but the decision must be taken in good faith. The standard of measurement is the contribution to the military purpose of the operation as a whole, compared with other consequences of that action, such as the effect upon civilians or civilian objects. The assessment is done ex ante (before the moment) and not post factum (after the fact). In addition, proportionality often leads to confusion between excessiveness and extensivity. Therefore, to act in accordance with the principle, precautions in attack must be taken by those who target an objective.

Lastly, we have the principle of humanity, which some consider the core principle of the LoAC, which regulates the degree of permitted violence, forbidding actions which are unnecessary or excessive for the achievement of victory.

IHL provides for rules concerning the protection of vulnerable individuals, aside from the general category of civilians or combatants, such as the wounded, the sick and the medical mission (rules found in the additional protocols to the First Geneva Convention and in customary law). Moreover, there is a developed legal corpus on the treatment of civilians and prisoners of war (combatants) in situations of detention and internment. The Third Geneva Convention deals solely with the treatment of PoWs, whilst the Fourth Geneva Convention focuses on the treatment and protection of civilians and civilian objects. III & IV).

All states must respect and ensure respect for IHL in all circumstances, the principle of pacta sunt servanda, is defined in Article 26 of the Vienna Convention, noting that:

“Every treaty in force is binding upon the parties to it and must be performed by them in good
faith”

This means states need to take measures within their jurisdiction to implement such treaties. All states must find and prosecute or extradite any person alleged to have committed or ordered the commission of war crimes, as well as take all measures necessary to end ongoing IHL violations. It can never be ‘the state’ in all its abstractedness that will be held responsible for IHL violations but individuals (military commanders and other superiors) that bear responsibility for war crimes under their control if they fail to take all necessary and reasonable measures to prevent or repress such crimes or to refer the matter to the competent authorities.

We often first think of the International Criminal Court when we think of persecuting IHL violations, but this mechanism only operates regarding war crimes, ethnic cleansing, genocide, and crimes against humankind. Additionally, there is the matter of the ratification of the Rome Statute, in defect the individuals bearing the nationality from that state cannot be held responsible in front of the ICC. Therefore, international mechanisms play a subsidiary and complementary role and are only activated if national mechanisms fail.

In practice, there are many factors negatively influencing compliance with IHL such as the self-interest of the actors involved or the expectation of reciprocity (even though compliance with IHL does not obey the principle of reciprocity). On the more positive side, the public opinion can entice compliance as it did in 2003 regarding reports of the systematic torture and abuse of Iraqi prisoners held by the USA, the public scandal damaged the reputation of the US government and as a result, led to the prosecution and conviction of several members of the armed forces.

To be able to present an overview of this often-misunderstood branch of the law, we were not able to develop some important notions such as the articulation between the principles, the definition of the notion of combatant or the distinction between a non-international armed conflict and an international armed conflict. For more information and to go beyond this brief presentation, the resources put at disposition by the International Committee of the Red Cross are a great read and easily accessible as their website contains all the legal sources as well as commentaries. Some resources also exist from the point of view of armed forces and provide a good insight into how IHL is implemented on the ground.

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