Summary Principles of International Humanitarian Law
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Course
International Humanitarian Law
Institution
The University Of Nottingham (UON)
The purpose of this summary is two-fold: first and foremost, it is to set the scene of the kind of proposition involved by international humanitarian law—of the very idea of a regulation of hostilities and some of its key principles.
We shall then attend to the second purpose of this summary—a...
N Melzer, International Humanitarian Law: A Comprehensive Introduction (ICRC, 2016) pages 17-46
What is IHL?
‘IHL is a set of rules that seek to limit the humanitarian consequences of armed conflicts. It is
sometimes also referred to as the law of armed conflict or the law of war (jus in bello). The primary
purpose of IHL is to restrict the means and methods of warfare that parties to a conflict may employ
and to ensure the protection and humane treatment of persons who are not, or no longer, taking a
direct part in the hostilities. In short, IHL comprises those rules of international law which establish
minimum standards of humanity that must be respected in any situation of armed conflict.’
‘IHL is specifically designed to apply in situations of armed conflict. The belligerents therefore cannot
justify failure to respect IHL by invoking the harsh nature of armed conflict; they must comply with
their humanitarian obligations in all circumstances. This also means that IHL is equally binding on all
parties to an armed conflict, irrespective of their motivations or of the nature or origin of the conflict.’
Even if the other side in the conflict acts in a manner inconsistent with IHL, the other parties must still
respect the law
IHL comprises of a balancing act between considerations of military necessity and humanity. IHL
recognises that sometimes death, injury and destruction may be necessary. However it also makes
clear that this necessity does not give belligerents the right to wage unrestricted war. Instead limits
are placed on the means and methods of warfare.
Fundamental Principles of IHL
Central to IHL is the principle of distinction – the idea that ‘the only legitimate object which States
should endeavour to accomplish during war is to weaken the military forces of the enemy’. Civilians
‘shall enjoy general protection against dangers arising from military operations’. Therefore parties to
conflicts have to distinguish at all times between military and civilian objectives.
IHL also places great emphasis on the principle of precaution. This is the idea that belligerents should
minimize the infliction of incidental death, injury or destruction of those protected against direct
attack. Therefore IHL places a duty on parties to the conflict to take ‘constant care’ to spare civilian
objectives. This applies to both the aggressor and the defender, the latter of whom must take all
necessary measures to protect the civilian population under it’s control from the enemy.
IHL also requires proportionality – where incidental harm on civilians, or civilian objectives cannot be
avoided, those planning the attack must ensure that any loss is not excessive to the concrete and
direct military advantage anticipated.
The principle of unnecessary suffering not only protects civilians from the effects of hostilities, but also
prohibits or restricts means and methods of war that are considered to inflict unnecessary suffering or
injury on combatants. The only legitimate objective is to weaken the forces of the enemy – anything
going beyond this is prohibited.
The principle of humane treatment – Another fundamental or feature of IHL – it requires that all
persons who have fallen into the hands of the enemy are entitled to humane treatment regardless of
their status and previous functions or activities. Those surrendered of wounded shall in all
circumstances be treated humanely, without distinction placed on race, colour, religion, sex, birth or
wealth or any other similar criteria. IHL does allow however for measures of control and security to be
placed upon those under their control which may be necessary as a result of the war. These rules also
apply to captured civillians.
Sources of IHL
1. Treaty Law
IHL today is heavily codified in International law. For example for international armed conflict, the
most important sources are the four 1949 Geneva Conventions and their Additional Protocol I, and
weapons treaties such as the 1980 Convention on Certain Conventional Weapons.
Treaty law for non-international armed conflicts is significantly less developed – The most important
sources are Common Article 3, and Additional Protocol II – given that most conflicts are non-
international it is widely accepted that IHL in this area needs improving.
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