International Humanitarian Law

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflicts. The fundamental purposes of international humanitarian law include,

• to prevent unnecessary suffering of combatants and non-combatants alike.
• to avoid an escalation or a spread in conflict and to prevent the horrors that accompany total warfare.
• to protect persons not taking active part in hostilities, civilian objects and civilian property and those combatants rendered hors de combat.

These purposes are reflected in the rules and principles of international humanitarian law. These rules represents a carefully thought out balance between two opposing interests, namely humanitarian concerns and military considerations. Every one of its rules constitutes a dialectical compromise between these two opposing forces. Moreover, the rules are also consistent with the fundamental principles of International humanitarian law which guide the conduct of hostilities by restricting or limiting the right of parties to a conflict to use the means and methods of warfare of their choice. This short article shall briefly examine the basic principles of International humanitarian law.

Principle of distinction

This principle requires belligerents to distinguish between military objectives and civilian persons or objectives at all times, and attack only military objectives. The principle is a recognised norm of customary international law. It is however restated in article 48 of Additional Protocol I as follows:

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.

Belligerents are therefore under a permanent obligations to ensure that the civilian population is spared and protected from hostilities at all times. However, certain military attacks may not be able to avoid civilian casualties. In such cases, the principle  of proportionality will provide comprehensive guidance.

Principle of military necessity

Military necessity is a principle that allows combatants to use the minimum amount of force necessary to achieve a legitimate military objective. The principle of military necessity places restrictions and limitations on military action in the interest of humanity, in the sense that no such action may be undertaken unless it is actually necessary in military terms. It underpins the idea that the aim of war is not the killing of as many members of the adverse armed forces as possible or the destruction of as much of the adverse belligerent property as possible; rather, belligerents should only adopt such measures as are necessary to overpower the enemy and to bring about its surrender. Accordingly, any attack must be intended and tend towards the military defeat of the enemy. This Principle is stated in the 1868 St. Petersburg declaration as follows;

The only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.

It can be stated that the principle implies and allows for a hierarchy of acts in the context of armed conflict as follows;  one should capture rather than wound; one should wound rather than kill; one should kill less persons rather than kill more person.

The principle of proportionality

Under this principle, all military measures taken by belligerents must be proportionate to the aim they seek to accomplish. This principle comes into play whenever a lawful attack against military objectives causes civilian casualties or damage to non-military objectives.  The military advantage obtained by a particular military operation must outweigh the damage caused to civilians and civilian objects.

Therefore, when planning an operation, belligerents must carefully weigh up the importance of the military objective, alternative means by which the advantage may be achieved and the expected losses on the part of civilians. Article 51(5)(b) of Additional Protocol I formulates this principle by prohibiting attacks that cause incidental loss to civilians life, injury to civilians, or damage to civilian objects that s excessive in relation to the anticipated and direct military advantage of the attack. Furthermore, article 57(2)(a)(iii) of additional Protocol I requires commanders to refrain from deciding to launch an attack which may be expected to cause incidental loss of civilian, 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.

If it appears that an excessive number of civilians may be killed by an attack when compared to the relative importance of the advantage looked for, the attack will be prohibited.  The principle is well article 51(5) of the additional Protocol 1 as follows;

 Principle of humane treatment

This principle is a recognized norm of customary international law. It places a permanent obligation on parties to a conflict to treat civilians, hors de combats and other protected persons humanely at all times. The Geneva Conventions of 1949 lay down principles on how parties to a conflict should treat protected persons within their control. For instance, Common article 3 of the Geneva Conventions requires the humane treatment of 'persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat  by sickness, wounds, detention, or any other cause. This article does not define 'humane treatment' but it provides an example of acts which constitute inhumane treatment. These acts include violence to life and person (including cruel treatment and torture), the taking of hostages, and humiliating and degrading treatment. Article 27 on the other hand provides that;

 Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Similarly, the Third Geneva Convention of 1949 states the general principle that Prisoners of war must be humanely treated at all times. The Convention further set standards of treatment of Prisoners of war in relation  to their living conditions, health, food, clothing, possessions and discipline.