International Humanitarian Law (Law of War)

Introduction – Law of War

International Humanitarian Law (IHL), commonly known as the Law of War or Law of Armed Conflict, is a branch of Public International Law that regulates the conduct of hostilities and protection of persons in armed conflicts. It aims to limit human suffering, protect civilians, prisoners of war, and the wounded, and balance military necessity with humanity.

IHL is applicable in both international and non-international armed conflicts and is enforced through treaties, customary international law, and judicial decisions. Key sources include the Geneva Conventions (1949), Additional Protocols (1977), Hague Conventions, and customary norms.

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1. Definition and Scope

Definition

According to Jean Pictet, IHL:

“Comprises the rules that, for humanitarian reasons, seek to limit the effects of armed conflict on people and property.”

Scope

• International Armed Conflicts (IACs): Between two or more states.
• Non-International Armed Conflicts (NIACs): Between a state and non-state armed groups or among non-state groups.
• Regulates:
  1. Means and methods of warfare (prohibited weapons, targeting rules).
  2. Treatment of persons (prisoners of war, civilians, medical personnel).
  3. Protection of property (cultural sites, humanitarian objects).

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2. Sources of International Humanitarian Law

1. Treaties
   • Geneva Conventions (1949): Four conventions protecting wounded soldiers, prisoners of war, civilians, and maritime warfare victims.
   • Hague Conventions (1899, 1907): Regulate means and methods of warfare, including treatment of combatants and occupation of territories.
   • Additional Protocols I & II (1977): Expanded protection for civilians and combatants, including NIACs.
2. Customary International Law
   • Rules derived from general practice accepted as law, binding even non-signatory states.
   • Example: Prohibition of torture, targeting civilians.
3. Judicial Decisions
   • International Criminal Tribunal for the Former Yugoslavia (ICTY)
   • International Criminal Tribunal for Rwanda (ICTR)
   • International Court of Justice (ICJ), e.g., Legality of the Threat or Use of Nuclear Weapons (1996)
4. Soft Law / UN Resolutions
   • UN Security Council and General Assembly resolutions supporting compliance and enforcement of IHL.

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3. Principles of International Humanitarian Law

1. Distinction
   • Parties must distinguish between combatants and civilians; civilians are protected from attack.
   • Case Example: ICTY, Prosecutor v. Tadić (1995) – Emphasized protection of non-combatants.
2. Proportionality
   • Attacks should not cause excessive civilian harm relative to the anticipated military advantage.
   • Case Example: ICJ, Legality of Nuclear Weapons (1996) – Proportionality is central to IHL.
3. Necessity
   • Military force may only be used to achieve a legitimate military objective.
4. Humanity / Unnecessary Suffering
   • Prohibits weapons or tactics that cause superfluous injury or unnecessary suffering.
   • Example: Chemical and biological weapons banned under Geneva Protocol (1925).
5. Neutrality
   • Protection for neutral states and personnel, including humanitarian actors (Red Cross).

Also Read: International Organizations in Public International Law

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4. Protected Persons and Objects

1. Civilians – Must not be targeted; provided aid and protection during conflict.
2. Prisoners of War (POWs) – Protected under Geneva Convention III (1949); cannot be tortured, must receive humane treatment.
3. Medical and Humanitarian Personnel – Immunity from attack; right to operate safely.
4. Cultural Property and Environment – Destruction prohibited under Hague Convention (1954).

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5. Prohibited Conduct and Weapons

1. Torture and Inhumane Treatment – Violates Geneva Conventions and customary law.
2. Perfidy and Treachery – Misuse of symbols like the Red Cross for attack is prohibited.
3. Indiscriminate Weapons – Landmines, chemical weapons, biological weapons, and nuclear weapons in most contexts.
4. Targeting Civilians / Civilian Infrastructure – Considered a war crime under Rome Statute (1998).

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6. Enforcement and Accountability

International Criminal Tribunals

• ICTY & ICTR: Tried war crimes, crimes against humanity, and genocide.
• ICC (Rome Statute, 2002): Permanent court for prosecuting war crimes globally.

State Responsibility

• States can be held liable for violations of IHL, e.g., Bosnia Genocide Case (ICJ, 2007).

Case Examples

1. Prosecutor v. Tadić (ICTY, 1995): Confirmed jurisdiction over NIACs and affirmed principles of IHL.
   • Case Link
2. Bosnia Genocide Case (ICJ, 2007): Established state obligations to prevent genocide.
   • Case Link
3. Legality of Nuclear Weapons (ICJ, 1996): Discussed the compatibility of nuclear weapons with IHL principles.
   • Case Link

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7. Contemporary Challenges in IHL

1. Non-State Armed Groups – Compliance by terrorist or insurgent groups is difficult.
2. Cyber Warfare – Applicability of IHL to digital attacks remains debated.
3. Use of Autonomous Weapons – Drones and AI-driven weapons challenge traditional rules of proportionality and distinction.
4. Urban Warfare – Protecting civilians in dense population centers is increasingly complex.
5. Global Enforcement Gaps – ICC jurisdiction limited; enforcement relies on state cooperation.

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8. Conclusion

International Humanitarian Law is essential for mitigating human suffering during armed conflicts, balancing military necessity with humanitarian principles. It provides clear rules for conduct, protection of persons and property, and accountability mechanisms through tribunals and courts. In today’s complex conflicts involving non-state actors, cyber operations, and urban warfare, IHL remains a dynamic and evolving body of law critical for global peace, human rights, and justice.