INTERNATIONAL HUMANITARIAN LAW AND CONFLICT OF STUDIES
Author: Priyadharshini R
International Humanitarian Law (IHL), a branch of Public International Law and it is also called a branch of the Law of Nations that seeks to impose a restriction on the limits of destruction caused by armed conflict. IHL is also known as the laws of war or the law of armed conflict. It is the legal terminology applicable to contingencies of armed conflict and occupation. This branch of law aims to limit the effects of armed conflict as a result of the rules and principles it is following. IHL is a major follower of the Hague Convention, Geneva Convention, etc. The principles of IHL are mainly based on Article 22 of the Hague Regulation. In the Geneva Convention, Articles 4 and 27 form the foundation stone for IHL. IHL is mainly recognized by the Civilized Nations. IHL is also called the domestic law principle. But due to the diversity and legal systems of various countries, these principles are not completely enforceable.
There are 2 fundamental principles to IHL
1. Persons who are away from or not participating in the hostilities must be protected.
2. Every party to an armed conflict has the right to choose methods and means of warfare.
IHL is having a major role in regulating armed conflict and situations of occupation.
At its core, IHL represents a balance between military necessity and humanitarian considerations in the context of conflict. Humanity, as a cornerstone of IHL, represents the imperative during the conflict to alleviate suffering and save lives, and to treat humanely and respectfully individuals. Military necessity is the justification of measures necessary to achieve a military goal, provided these measures comply with international humanitarian law.[1]
The foundation stone of IHL is the balancing of humanity and military necessity. The other important principles of IHL are the duty to take precautions to spare the civilian population before and during an attack, the prohibition against the infliction of unnecessary suffering or superfluous injury, and the prohibition of indiscriminate attacks.
The history of IHL has come a long way from Mahabharat itself. Law of Manu has incorporated the provisions of surrendering adversaries who are not capable of fighting especially people who are aged, injured soldiers.
BASIC PRINCIPLES OF IHL
There are 2 basic foundation principles called the Principle of Humanity and the Principle of military necessity. The role of the legislature of various countries is to find a balance between the above 2 principles. Every state can adopt the convention of IHL or they can form their own customary IHL.
The 2 Principle of IHL
(1) Principle of Humanity
The crux of this principle is that all humans have the capacity and ability to show respect and care for all including the enemies. Modern IHL is not naïve. It just intends to limit the harm to society. IHL aims mainly to protect the wounded and the sick persons.
(2) Principle of Military Necessity
They are the measures undertaken to secure the ends of war, which are lawful according to modern law.
Some other principles of IHL are the distinction between civilians and combatants, The distinction between civilian objects and military objectives, Necessity, Prohibition on causing unnecessary suffering.The following persons were protected under IHL.
Those are Journalists, Some protected zones, Cultural Properties, The Natural Environment. Medical and religious personnel, etc.
CLASSIFICATION OF IHL
The 2 main classifications of IHL are
(i) International Armed Conflict (IAC)
(ii) Non-international armed conflict (NIAC)
Originally IAC was applied only to war between states. The difference between IAC and NIAC can be seen from the history of the development of International Law in general and IHL in particular.
INTERNATIONAL CONVENTIONS
There are various conventions that deal with IHL. IHL is mainly based on and governed by those conventions.
They are
(i) The Mine Bar convention
(ii) Geneva Convention
(iii) Vienna Convention
SOME PROGRESS[2]
From the late 1980s itself, ICRC has put great efforts to encourage governments to implement IHL and to impart its provisions at relevant levels. ICRC has also worked with governments and the National Red Cross and Red Crescent societies to impart knowledge of the law on academic fronts, youth, and media.
Hungary v. Slovakia[3]
In the year 1978 Hungary and Chekoslovokia signed a treaty named Danube Treaty to build a dam over the river Danube. When the construction began, in 1989, Hungary wanted to revoke the terms and conditions of the treaty due to environmental concerns, lack of funding, etc. In 1993, Slovakia started negotiation with Hungary and they jointly decided to take the matter to ICJ.
ICJ held Hungary to be liable on all grounds for not respecting the doctrine named Pacta Sunt Servanda and other treaty violations contained in the Danube treaty. ICJ found Slovakia guilty on one ground that is the environmental repercussions of the construction of the dam.
Thus it can be seen clearly that the law of armed conflicts is between 2 contradictory impulses namely the need to wage war effectively and the desire to protect people and property against the ravages of such warfare. The armed conflict law tries to reconcile these impulses in a pragmatic way. IHL compels States and Non-States to guard and preserve the life, limb, and property of civilians.
References:
[1] https://ijrcenter.org/international-humanitarian-law/#:~:text=International%20humanitarian%20law%20(IHL)%2C,the%20effects%20of%20armed%20conflict. [2]http://iihl.org/full-list-congresses-international-conferences-round-tables-since-institutes-foundation/the-distinction-between-international-and-non-international-armed-conflicts-challenges-for-ihl [3] [1997] ICJ Rep 7.