The humanising of War! You might as well talk of the humanising of Hell ... the essence of war is violence. Moderation in war is imbecility. Hit first, hit hard, and hit everywhere.
Admiral Lord Fisher (from Sir Reginald Bacon, The Life of Lord Fisher of Kilverstone, Admiral of the Fleet, vol. 1, 120-1; 1929)
International humanitarian law (IHL) – also known as the ‘law of armed conflict’ – is a branch of international law that regulates armed conflict. IHL is also known by the term ‘jus in bello’ – which translates from Latin as ‘justice in war’.
IHL seeks to regulate the conduct of armed conflict through a number of means, for example:
- through rules which protect persons who do not, or who no longer directly participate in hostilities; and
- by imposing restrictions on parties to armed conflict with regard to the means and methods that it is permissible to employ in the conflict.
IHL seeks to place limitations on the damaging effects of armed conflict, especially on the most vulnerable – civilians, prisoners of war, and wounded, sick and shipwrecked members of the armed forces. In order to achieve such aims, the rules of IHL are based on certain fundamental principles.
These principles are:
- The distinction between civilians and combatants
Combatants are those people who take direct part in hostilities, such as members of armed forces. The principle of distinction requires that belligerents distinguish between military objectives and civilian persons and/or objects at all times, and limit attacks to military objectives only.
- The prohibition on attacking persons no longer taking active part in hostilities
Persons who do not, or who are no longer taking direct part in hostilities are known as hors de combat (from French, meaning ‘out of combat’), and are immune from being directly targeted.
- The prohibition on inflicting ‘superfluous injury or unnecessary suffering’
Parties to the conflict should not use means or methods of warfare that result in superfluous injury or unnecessary suffering; that is, any injury greater than that strictly necessary to achieve the military objectives, which uselessly aggravate the suffering of wounded personnel, or otherwise render their death inevitable.
- The principle of necessity
The principle of necessity requires that the parties to the conflict only adopt the measures necessary to weaken the enemy and achieve their surrender; it is not necessary to bring about total destruction of the enemy, its armed forces, or its property.
- The principle of proportionality
Proportionality means that any military measures taken by parties to the conflict must be proportionate; the military advantage obtained by a particular operation must outweigh the damage caused to civilians and civilian objects; this principle is more often understood in the negative; that an attack will be considered disproportionate if it is expected to or does cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
IHL is a practical law. When the UN Charter was adopted in 1945, States sought to prohibit unilateral acts of force by States in their international relations. Thus, resort to force between States – essentially, war – was prohibited in Article 2(4):
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Despite the prohibition on the use of force, it was recognised that armed conflicts will occur, and that the failure to observe the rules with regard to the use of force – the jus ad bellum – should not lead to a failure to observe any rules in the conduct of war. Thus, IHL is applicable regardless of the legality of the conflict. Even if the conflict is deemed to have been an illegal resort to force under international law, IHL will still apply.
IHL is also sometimes divided up into ‘Hague law’ and ‘Geneva law’. These designations refer to the geographical origins of the law and relate to the subject matter of the laws. Hague laws generally deal with regulating the means and methods of conflict; Geneva law relates to rules governing persons involved in armed conflict – civilians and combatants.
Hot Tip: What is a State?
In international law, a ‘State’ is a recognised and independent country or nation.