Fundamental Principles of International Humanitarian Law | Law Optional Notes for UPSC PDF Download

Introduction

• International humanitarian law is a branch of the law of nations that aims to set limits on the destruction and suffering caused by armed conflicts. It upholds the principle articulated in Article 22 of the Hague Regulations. A significant portion of this body of law is found in the Geneva Conventions of 1949.
• Among the provisions within the Geneva Convention, Article 4 and Article 27 hold a central role. They form the foundation of the entire "Geneva law" by emphasizing the importance of respecting the dignity and fundamental rights of individuals, both men and women.
• The core principles of humanitarian law encompass humanity, the distinction between civilians and combatants, as well as civilian objects and military objectives, proportionality, and military necessity. These principles are acknowledged by civilized nations and can be regarded as universal principles of domestic law applicable across legal systems. 
• However, due to the diversity of countries and their legal frameworks, not all principles can be uniformly applied. Principles like good faith and proportionality, which have evolved into customary law and have been formally codified, can serve as supplementary tools for implementing international humanitarian law. Some principles may be more aspirational rather than codified legal rules, guided by logic rather than explicit legal provisions. For instance, the concept that attacks should avoid civilian harm is a matter of logic rather than a strict legal dictate when restricting attacks on military targets to protect civilians.

History of International Humanitarian Law

• As early as approximately 400 BC, in the Indian epic Mahabharata, there were provisions incorporated into the Laws of Manu that prohibited the killing of surrendering adversaries who were no longer capable of fighting. This included individuals such as the elderly and injured soldiers who had lost limbs or other body parts. For instance, King Hammurabi of Babylon created the "Code of Hammurabi" with the aim of safeguarding weaker civilians from more powerful ones. This code also stipulated that hostages could be released upon payment of a ransom.
• In the modern world, internationalism has become the prevailing approach. The idea of universality often hinges on similarities, and in the process of developing and refining international humanitarian law, the International Committee of the Red Cross has sought to establish rules that are acceptable to all, as they are in alignment with human nature. Despite this universal aspiration to mitigate the suffering caused by war, regulating the impact of war has been attempted multiple times throughout history.
• However, it was during the 19th century that a significant movement gained momentum in codifying the laws of war, giving birth to modern international humanitarian law. International legal experts often refer to the Lieber Code as the earliest example of codifying the laws of war. Named after Francis Lieber, a German-American professor of politics and law at Columbia University, New York, who prepared it on behalf of President Lincoln, this document served to regulate the conduct of Union forces during the American Civil War. Enacted in 1863 for the Union Army, the Lieber Code was the first comprehensive set of instructions for forces in the field, governing both the laws and customs of war. Its 157 articles were rooted in Enlightenment ideals, emphasizing the importance of targeting armed enemies while respecting unarmed civilians and their property, as well as ensuring humane treatment of prisoners and the wounded.
• During the Italian War for Unification in 1859, a Swiss merchant named Henry Dunant witnessed the plight of 40,000 soldiers from Austria, France, and Italy who were wounded on the battlefield of Solferino. This experience would play a pivotal role in the development of international humanitarian law.

Basic Principles of International Humanitarian Law

International humanitarian law is founded on two fundamental principles: the Principle of Humanity and the Principle of Military Necessity. Striking a balance between these two principles is a task that can be loosely assigned to lawmakers. States are expected to either ratify conventions related to international humanitarian law or contribute through their practices to the development of customary international law rules that govern armed actions. According to the Principle of Humanity, both states and civilians or combatants should extend assistance and support to each other. In contrast, the Principle of Military Necessity emphasizes that the armed forces, trained by the state, must always be prepared for any form of internal or external conflict.

Principle of Humanity

This principle asserts that all individuals possess the capacity and capability to demonstrate respect and compassion for others, even for their declared adversaries. International humanitarian law acknowledges the sobering reality that harm, destruction, and death can be legally permissible during armed conflicts. Instead, it aims to mitigate such harm, with the Principle of Humanity serving as a guiding ethos. Numerous rules within international humanitarian law are influenced by this concept, particularly those that establish safeguards for the wounded and sick.

Principle of Military Necessity

No principle is more integral to understanding the concept of Military Necessity. Modern civilized nations interpret Military Necessity as the requirement for measures that are essential to achieve the goals of war and are consistent with contemporary legal norms.

Additional Principles

These encompass principles such as:

• Differentiating between civilians and combatants.
• Distinguishing between civilian objects and military objectives.
• Necessity.
• Prohibition on causing unnecessary suffering.

These principles are not derived from an independent source of international law but rather stem from treaties, customary practices, and general legal principles. They serve to expound upon existing regulations, clarify their substance and significance, and aid in their interpretation and comprehension.

Specially Protected Persons and Objects

There are specifically protected persons and objects in International Humanitarian Law such as:

• Medical and religious personnel and object,
• Humanitarian relief personnel and object,
• Journalists,
• Some protected zones, 
• Cultural properties, 
• The natural environment, 
• Work and installations containing dangerous forces, 
• Personnel and objects involved in a peacekeeping mission.

Major weapons and IHL treaties associated with them

Distinguishing Between International and Non-International Armed Conflict

• Historically, the law of international armed conflict was primarily applied to wars involving states. To understand the differentiation between international and non-international armed conflicts, it's important to consider the evolution of international law as a whole and, specifically, international humanitarian law.
• The distinction between international and non-international armed conflicts can be traced back to the development of international law, and in particular, international humanitarian law. The Additional Protocols of the Geneva Conventions of 1949 addressed these two types of conflicts separately. Additional Protocol I specifically addressed rules pertaining to international conflicts. These treaties contained regulations governing the conduct of hostilities and the protection of those not participating in the conflict.
• Conversely, non-international armed conflicts are subject to a more limited set of treaty rules. These rules are primarily found in Common Article 3, the provisions of Additional Protocol II, and specific articles like Article 8(2)(c) and Article 8(2)(e) of the International Criminal Court (ICC) Statute.

International Conventions

Mine Ban Convention (Ottawa Treaty)

The Mine Ban Convention, also known as the "Ottawa Treaty," emerged as a result of the Ottawa Process initiated by the Canadian Government following the first review conference for the 1980 Conventions on Conventional Weapons. This treaty aimed to address the issue of anti-personnel mines and prohibit their use. In December 1996, the United Nations General Assembly passed Resolution 51/45S, urging countries to establish a new international agreement banning anti-personnel mines. The Government of Austria circulated a draft treaty to various governments and international organizations to facilitate a peaceful discussion. Deliberations on the content of the Austrian draft were held in Vienna from February 12th to 14th, 1997. Subsequently, the Government of Germany hosted a meeting in April 1997 to discuss the verification of such a treaty. The official follow-up to the 1996 Ottawa conference, known as "The Brussels International Conference for a Total Global Ban on Anti-Personnel Mines," was hosted by the Belgian Government from June 24th to 27th, 1997. This conference brought together representatives from 154 countries, with 97 of them signing the "Brussels Declaration," which called for a diplomatic conference in Oslo to formally negotiate a comprehensive ban treaty based on the Austrian draft text.

Geneva Conventions

The Geneva Conventions, along with their additional protocols, form the foundation of international humanitarian law. They constitute a body of international law that regulates the conduct of armed conflicts and aims to minimize their impact. These conventions provide specific protections for individuals not participating in hostilities, including civilians, healthcare workers, humanitarian aid workers, and those who are no longer actively engaged in combat, such as wounded and sick soldiers and prisoners of war.

Vienna Convention

The Vienna Convention is an international agreement that governs treaties between states. Drafted by the International Law Commission of the United Nations, it was adopted on May 23, 1969, and came into force on January 27, 1980. This convention applies exclusively to written treaties between states. The first part of the document outlines the terms and scope of the agreement, while the second part outlines the rules governing the conclusion and adoption of treaties.

Contemporary Developments

Since the late 1980s, the International Committee of the Red Cross (ICRC) has been actively involved in efforts to encourage governments to implement international humanitarian law and to educate relevant government officials on its provisions. The ICRC also collaborates with governments and national Red Cross and Red Crescent societies to promote awareness of international humanitarian law in academic circles, among youth, and in the media.

Case: Hungary v. Slovakia, 1997, ICJ

In 1978, Hungary and Czechoslovakia signed the Danube Treaty to jointly construct a dam on the Danube River. Construction began, but by 1989, Hungary sought to revoke the treaty due to environmental concerns, financial issues, and a perceived fundamental change in circumstances. In 1993, the newly formed nation of Slovakia engaged in negotiations with Hungary and jointly brought the matter to the International Court of Justice (ICJ).
The ICJ determined that Hungary was liable on several grounds for not upholding the doctrine of pacta sunt servanda (agreements must be kept) and other treaty violations outlined in the Danube Treaty. Slovakia was also found guilty on one count. Notably, the ICJ addressed the environmental impact of the dam construction, marking a significant moment in which the ICJ sought to determine environmental repercussions.

Conclusion

The law of armed conflict grapples with two opposing imperatives: the need to conduct effective warfare and the desire to protect people and property from the ravages of war. It seeks to reconcile these imperatives in a pragmatic manner. International humanitarian law obliges both states and non-state parties to make every effort to safeguard the lives, well-being, and property of civilians and others who are no longer actively involved in conflict. Simultaneously, it sets limits on permissible acts of violence within defined boundaries.
However, when these boundaries are breached and perpetrators of war crimes go unpunished, there is a tendency to dismiss international humanitarian law as lacking significant normative force. While this reaction is understandable, it overlooks the intricate complexities inherent in international humanitarian law.