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International Humanitarian Law (IHL) is a set of norms applicable in times of armed conflict designed to protect people who are not, or no longer, participating in hostilities, as well as to limit the means and methods of warfare. It comprises two main branches: (i) Geneva Law (Red Cross Law), which aims at protecting the defenseless and (ii) Hague Law, which establishes limits to the conduct of military operations. IHL as ius in bello seeks to mitigate suffering by ensuring a minimum humanitarian standard; ius ad bellum, on the contrary, concerns the legality of military action under international law. As “realistic” law IHL aspires to providing adequate solutions when humanitarian exigencies and military objectives clash. It guarantees the survival and protection of human dignity even in times of war.
The precursors of present-day IHL existed in many cultures and typically originated in religious values and military philosophies or major literary works (cf. Sun Tsu, The Art of War). Some ideas of IHL already flourished in the Medieval Ages. Two men played an vital role in the development of contemporary humanitarian law: Henry Dunant (cf. A Memory of Solferino) and General Dufour, chairperson of the 1864 Diplomatic Conference adopting the first Geneva Convention. Another important step forward was the Lieber Code, a warfare manual during the American Civil War. In recent decades, human rights and the changing nature of armed conflicts have had a profound impact on IHL. The main sources of contemporary International Humanitarian Law are the Four Geneva Conventions of 1949 plus two Additional
Protocols.
The Principles of International Humanitarian Law
a) The Martens Clause and the Principle of Humanity
“Until a more complete code of the laws of war is issued … in cases not included in the Regulations … populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” The Martens Clause contains the premise to preserve -even in armed conflict - a certain minimum of human dignity. Acts not expressively forbidden are therefore still subject to a test of basic humanity. This principle played a major role in the Nuremberg Trials. The principle of humanity states that a soldier's aim is to disable other combatants in order to reach a defined military objective. Indiscriminate attacks and attacks against civilians or civilian targets are strictly prohibited.
b) Principle of Distinction
“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.” (Rousseau). The principle of distinction imposes an obligation on all commanders to draw a strict line between combatants (members of armed forces) and everyone else. The use of force is allowed only against combatants, and only as long as there is resistance. Persons placed hors de combats because of sickness, injury etc. are no longer a legitimate objective of military operations. Combatants have the right to participate directly in hostilities. A combatant may fight other combatants, even kill them, and will not be held personally responsible for his acts. Combatants are “obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.” Combatants are entitled to special protection as prisoners of war (POWs) upon capture. Any person not belonging to the armed forces - also in the case of doubt - is considered a civilian. All acts of violence against civilians or civilian property, whether committed in offense or defense, are prohibited.
c) Military Necessity and the Principle of Proportionality
The right of the parties to the conflict to choose methods and means of warfare is not unlimited. It is prohibited to employ methods of warfare which cause superfluous injury or unnecessary suffering. The principle of military necessity therefore states that (i) the use of military force must be controlled (ii) only used when necessary (iii) is not to be used more than necessary. The underlying principle of proportionality aims at striking a balance between the military necessity and the requirements of humanity. The advantage of accomplishing a certain military objective must strongly outweigh any possible collateral damage. Due to a strong influx from human rights law, the balance between military necessity and humanity is now tilting in favor of the latter: The humanitarian principle has become the dominant one.
d) Chivalry
Any combatant is obliged to act “courteously” toward his opponent; it is prohibited to act in a treacherous way.
Outlook
The year 1999 marked the 50th anniversary of the Four Geneva Conventions. They have established rules governing the conduct of hostilities and reaffirmed the principle of immunity of the civilian population. We need not look far to observe that IHL principles are violated on a daily basis; still, these legal instruments have saved lives, frequently mitigated suffering and often preserved some respect for human dignity.
There is obviously tension between humanitarian principles and wartime behavior. Promoting these universal standards is thus going to be a task for decades to come, until armed conflicts can be averted altogether. Gaining due recognition for these fundamental principles in every part of the world, is an arduous, albeit highly important task which requires unwavering determination. Every steps taken in the direction of a more humane world order deserve credit. In today’s global village, the structure of the international community conceived in Westphalia in 1648 seems somewhat odd. The true sovereign of the modern world is the individual human being, this global citizen, who deserves protection under the umbrella of both international and national law. Our mission is thus to construe, in the words of chief prosecutor Jackson at the Nuremberg Trials, “a world structure according to the principles of the rule of law.”
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