The term ‘international humanitarian law’ refers to the current understanding of the laws concerning the conduct of warfare. The ICRC (International Committee of Red Cross), guardian and promoter of International Humanitarian Law describes it in the following manner:
“International humanitarian law is part of the body of international law that governs relations between states. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities”
International Law was earlier known as the Law of Wars to protect those who do not take part in the hostilities. Even in absence of any international document the earliest societies or communities would follow some rules of war during conflict either as per the instructions of the community leader or customs or religions.
The history of International Humanitarian Law is not a new one. The laws of war are as old as war itself and war is as old as life on earth. The earliest societies, like Papua, Sumerians, Babylon, Persians, Greek and the Romans had some rules of fighting which were strictly followed by people. Even the modern naturalists have identified that some rules are being practiced by animals also during the time of their combat. For example, when the deer fights with other types of deer or two wolves or dogs fight, the one who knows that he is losing, he gives up the fighting or some time offers surrender by exposing his throat to the victor, who as a result abstains to bite him. Even every religion contains a handful of provisions on the law of armed conflict (LOAC).
The aforesaid discussion shows the efforts to regulate warfare existed to a greater or lesser extent from the very ancient period. Those initiatives were not sufficient to regulate the conduct of parties during warfare until these rules had been documented in any instrument. The first initiative was taken, following the proposal of Henry Dunant in his book “A Memory of Solferino” in 1864. Dunant, in the book “A Memory of Solferino” described his experiences what he witnessed in the battle of solferino (a terrible conflict between French and Austrian forces, took place in northern Italy 1859) and simultaneously in his book he made two proposals firstly, “each state should establish in time of peace a relief society to aid the army medical services in time of war” and secondly, “state should conclude a treaty that would facilitate the activities of these relief societies and guarantee a better treatment of the wounded”. In next year the International Committee for the Relief of Military Wounded was established with its permanent seat in Geneva. The great success of the committee was that, within a very short time, it succeeded to persuade the Swiss government to convene an international conference.
Prior to this, an attempt was taken in 1863 to gather laws and customs of war by Francis Lieber in his valuable document “The Lieber Code” promulgated as General Orders No. 100 by President Lincoln. The Code (1863) provides detailed rules on the entire range of warfare. While The Swiss Government convened the conference in August 1864 and adopted the “Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field in 1864”. These documents accumulated the scattered provisions of LOAC.
Establishment of ICRC and further Developments
The Geneva Conventions led to the establishment of the International Red Cross. On 22 August 1864 twelve nations signed the first Geneva Convention, agreeing to guarantee neutrality to medical personnel, to expedite supplies for their use, and to adopt a special identifying emblem (which since the 1870s has been the Red Cross on a white background).
Alongside the Geneva Convention, The Hague Convention was created by the State in order to govern the wars. The Hague Conventions are various international treaties that emerged from The Hague Peace Conferences in 1899 and 1907. The two Conventions established a model for multilateral meetings to create international laws and subsequently influenced the formation of the League of Nations in 1919. After several years of these developments, World War II took place. It was the most horrified war that continued for six years. ICRC’s role evolved, bringing it into direct and continuous contact with the realities of war. It constantly urged governments to expand the reach of the law, which gradually came to cover warfare at sea, prisoners of war and civilians. The Swiss Government called for a conference and adopted four Geneva Convention, 1949 (four protocols).
I. on Wounded and Sick in the Field.
II. on Wounded, Sick and Shipwrecked at Sea.
III. on Prisoners of War.
IV. on Civilians (in the hands of enemy).
These re-wrote the existing Conventions and added a fourth, for the protection of civilians who found themselves under enemy control. In 1974, The Swiss Government organized Diplomatic Conference with the aim to protect civilians which had been neglected before the fourth GC of 1949. This conference adopted Additional protocols to 1949 GCs. Protocol I is applicable for international armed conflicts while Protocol II is applicable to non-international armed conflicts. These two protocols contributed tremendously to the development of IHL. The 1977 Additional Protocols, relating to the protection of victims in both international and internal conflict, not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights provisions. However, the APs lacked the provisions regarding conventional weapons which have been fulfilled by, later on, Conventions on Conventional Weapons in 1980 and its five protocols.
At the beginning of the 1990s, the status of the Additional Protocol I was uncertain and, as a result, so was the appropriateness of ‘international humanitarian law’ as the description of a ius in bello that was dominated by military imperatives. Yet, by the end of the decade, this uncertainty had been replaced by the acceptance of Additional Protocol I as customary law and a general embrace of the humanitarian values of international humanitarian law. This change took place as quickly and unequivocally as the original emergence of the term ‘international humanitarian law’.
Basic Principles of IHL
At a general level, IHL tries to find a balance between the two fundamental principles that are the principle of humanity on the one hand and the principle of military necessity on the other hand. However, there are seven fundamental principles that are not directly derived from the treaty but are essential of IHL.
- Person hors de combat (who have been put out of action) are entitled to respect for their lives and physical and moral integrity.
- It is forbidden to kill who surrenders or who is hors de combat.
- The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and medical supplies.
- Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions.
- Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed.
- Parties to a conflict and members of their armed forces have a prohibited choice of methods and means of warfare. For eg: the use of chemicals.
- Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property.
Application of IHL
The basic principles of IHL are framed after the passing of many conventions and treaties. This will be beneficial only if States fulfill their obligations. Customary international law also lays down the basic principle, now codified in the 1969 Vienna Convention on the Law of Treaties. States must therefore make international humanitarian law known to those who will apply it and to those who will benefit from its application. This means States must disseminate international humanitarian law principles and enforce internal measures to repress violations in order to protect the vulnerable groups and maintain the guarantee of human rights in times of non-international armed conflict.
This short history of international humanitarian law demonstrates that it did not begin in the mists of time. Nor was it fashioned by Dunant when he created the ICRC. Rather, the history of international humanitarian law was forged in two rapid periods of change. It began in the 1970s when it was suddenly posited as a field of law whose precepts were outlined in the Additional Protocols to the Geneva Conventions. The idea of international humanitarian law, together with the acceptance of the Additional Protocols, faltered for almost two decades. It was only at the end of the 1990s that, suddenly and without any formal mechanisms, Additional Protocol I became accepted as the basis for a uniquely strict understanding of international humanitarian law as the ius in bello.
 International Committee of the Red Cross (ICRC), War and International Humanitarian Law (29 October 2010), available at www.icrc.org/eng/war-and-law/overview-war-and-law.htm (last visited 20 December 2014).
This Article is Authored by Chinmaya Gupta, 3rd Year, BBA.LLB Student at Symbiosis Law School, Noida.
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