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Fundamentals of International Humanitarian law


Authored By- Meghana Vuttaradi

Keywords: Conflict, principles, rules

Abstract

International humanitarian law (IHL) outlines the limitations, restrictions, and prohibitions of both international and non-international parties involved in armed conflict. While International Humanitarian Law does not ban all violence, it aims to restrict the damage and violence incurred during conflict situations. International Humanitarian Law refers only to armed conflicts. That includes armed conflicts both internationally and internally. International Humanitarian Law should not apply in cases of internal conflicts or disruptions. Internal disturbances are protests, demonstrations, and discrete, irregular acts of violence that take place within the territory of a state and are subject to international human rights law.

Introduction

Many principles of humanitarian law include the principle of morality, the principle of separation between civilians and combatants, and the principle of proportionality, and the principle of military necessity, between civilian objects and military goals. Such principles of law are accepted by civilised nations and can also be considered a principle of domestic law that is applicable to all legal orders. However, only some of the concepts will function well, due to the complexity of countries and their legal systems. Principles such as good faith and proportionality, which have already become common law and have been codified, can be used to complement and enforce international humanitarian legislation. Other values can be real to the ideal law, and rely on logic rather than an applied legal rule. If the implementation of restrictions on civilians prevents any kind of attack, it is not law, but the rationale is that attacks should not be aimed at military objects, as they can damage civilians.

The branch of national law that aims to place limitations on the damage and suffering caused by armed conflicts is international humanitarian law. The theory of Article 22 of the Hague Regulations is laid down therein. The 1949 Geneva Conventions comprise a large part of international humanitarian law. The Articles of the Convention of Article 4 and Article 27 of the Geneva Convention hold a central role. It is the basis of the convention which proclaims the principles on which the whole of 'Geneva- law' is based. The principle of respect for the human being and the safe existence of the fundamental rights of individual men and women are proclaimed.

History of International Humanitarian Law

The Laws of Manu contained clauses in the Indian epic Mahabharata around 400 BC banning the killing of surrendering enemies who were no longer capable of battle. This included elderly persons, soldiers who were wounded, and often lost their hands, legs, and every other part of the body. Let's take an example of a king who was king of Babylon, called Hammurabi. He drew up the "Hammurabi Code" thinking about how to defend weaker citizens from the stronger ones. This code also specifies that the hostages are to be released on a ransom payment.

The modern world set its aspirations in internationalism. Similarity alone is also the principle of universality, and the International Committee of the Red Cross has pursued precisely this basis in formulating and perfecting this law and recommending laws that are appropriate to all or all because they are entirely compatible with human nature. In the meantime, amid this common concern to minimize the misery caused by war, few attempts have been made to control the effects of war.

However, in history, the 19th century was the moment when a movement gained energy to codify the laws of war and when the current international humanitarian law was born. The Lieber Code (a text is written to govern the actions of the Union forces during the American Civil War) is requested by foreign lawyers because it is the first example of the codification of the laws of war, named after Francis Lieber (1800-1872), a German-American professor of politics and law at Columbia University, New York, who prepared a manual on behalf of Lincoln, adopted in 1863. This Code was the primary code with one set of instructions for in-field armies, regulating war laws and war customs. The Code's 157 articles were based on the ideas that flow from enlightenment, as it emphasized, for example, that armed enemies should be attacked and that the unarmed people and their properties should be respected, and that the prisoners and the wounded should also be handled humanely. One merchant from Geneva, Switzerland, named Henry Dunant witnessed the struggle of 40,000 Austrian, French, and Italian soldiers during the Italian War for unification who were wounded on the Solferino battlefield in 1859.

Basic principles of International Humanitarian law

International humanitarian law consists primarily of two fundamental concepts, 1) The Morality Principle and 2) the Principle of military necessity. The task that can be loosely defined by the legislature is to find a compromise between these two principles. The State shall adopt the Convention on International Humanitarian Law or, by its practice, contribute to the establishment of the rule of customary international law which applies armed acts. According to the concept of humanity, the state and the civilians or fighters should support one another and according to the concept of military necessity, the armed forces equipped by the state government should always be prepared for some kind of conflict in the state.

1. Principle of Humanity

This theory states that all people, including their sworn enemies, have the capacity and ability to display respect and care for all. Modern International Humanitarian Law is not naive and recognizes that injury, devastation, and death can be lawful during armed conflicts, international humanitarian law clearly aims to restrict the injury, and humanity's principle is in the spirit of that ambition. This concept is influenced by many rules of international humanitarian law, especially those which provide protection for the wounded and sick.

2. Principle of Military Necessity

No theory is more essential to the Military Need substance and understanding. Military necessity, as modern civilized nations understand, consists of the need for certain steps necessary to ensure the end of the war, which, according to modern law, are lawful.

Other Principles

These include principles like:

1. The distinction between soldiers and civilians,

2. Differentiating civilian items from military targets,

3. Ban on causing needless pain.

4. These principles are not based on a separate source of international law but are based on the principles of treaties, customs, and common law. These principles may be taken from existing laws or reflect the substance and purpose of the law, as well as promoting, encouraging, and making it easy for others to understand the current law.

5. Persons and artefacts expressly secured

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

1. Medical and religious personnel and object,

2. Humanitarian relief personnel and object,

3. Journalists, some protected zones, cultural properties, the natural environment, work and installations containing dangerous forces, personnel, and objects involved in a peacekeeping mission.

In Hungary v. Slovakia, 1997,[1] Hungary and Czechoslovakia signed the Danube treaty in 1978 to jointly create a dam across the Danube River, and then started construction of the dam. In 1989, due to environmental issues, lack of resources, and also called a radical change of circumstances, Hungary tried to repeal the terms and conditions of the treaty. The new nation of Slovakia began negotiating with the Hungarian government in 1993 and mutually agreed to take the matter to the ICJ. Prima facie, the ICJ held that Hungary was liable on all grounds for failure to comply with the doctrine of pacta sunt servanda (agreement to be retained) and other breaches of the Danube treaty. ICJ found Slovakia on one count also guilty. Slovakia was also held responsible by the court for one land, and it was the first in which the ICJ judges actually needed a spot to assess the environmental effects of the dam’s construction.

Conclusion

The law of armed conflict is torn between two conflicting desires, the need to efficiently wage war and the need to protect individuals and property from the ravages of such warfare. The rule of armed conflict seeks in a very profoundly realistic way to reconcile these desires. International humanitarian law requires States and non-State Parties to do their utmost to safeguard and protect the lives, limbs, and property of civilians and others out of war (out of injury-related action), whilst at the same time enabling parties to a conflict to leave and commit acts of violence between boundaries.

Once these boundaries are transgressed, however, once war crimes perpetrators are not held to account for their transgressions, there is a natural inclination to disregard International Humanitarian Law as lacking any "true" normative power. This may be a noticeable response, but the nuances of international humanitarian law are not comprehensible.

[1] Gabcikovo-Nagumaros Project (Hung. v. Slovk.), 1997 I.C.J. 3

References

1. https://casebook.icrc.org/glossary/fundamental-principles-ihl

2. https://blog.ipleaders.in/international-humanitarian-law/

3. https://www.cambridge.org/core/books/international-humanitarian-law/fundamental-principles-of-international-humanitarian-law/1967338E9E63EF1B7CCD9387C36313F8

4. https://reliefweb.int/report/world/basics-international-humanitarian-law-december-2017