The Law of Armed Conflict: An Introduction

By Dr. U C Jha and Dr. K Ratnabali

This textbook gives an up-to-date and comprehensive analysis of the law of armed conflict or international humanitarian law. The author has traced the history of the laws of war and examined their relations with human rights and refugee laws. The topics covered include protection to the victims of war: prisoners, civilians, women, children, journalists, the natural environment and cultural property. The book contains an updated account of the functioning of the International Criminal Court, and explores the concept of command responsibility, as well as the area of private military and security companies. Besides discussing the law during air and naval warfare, the author has critically examined certain challenges which humanitarian law is facing today from cyber warfare; drones, autonomous lethal weapons and nuclear weapons. This textbook is an invaluable resource for anyone interested or working in the field of international humanitarian law: teachers, students, lawyers, government officials, military and police personnel, researchers and human rights activists.

• Language: English
• Publisher: VIJ Books (India) Pty Ltd
• Release date: Apr 1, 2017
• ISBN: 9789385563928

Dr. U C Jha

Wing Commander Dr U C Jha is an independent researcher. He has an extensive academic experience in the fields of military law, international humanitarian law and human rights laws. He has been teaching these subjects for more than a decade and is a resource person for the United Service Institution of India, New Delhi. He has served in the Indian Air Force for 24 years. He obtained a Ph D degree in Law and Governance from Jawaharlal Nehru University, where his dissertation was on the Indian Military Justice System. He also holds master's degree in law, life sciences, business administration, and defence and strategic studies; with post-graduate diplomas in environmental laws, intellectual property laws, and international humanitarian law, refugee law and human rights laws.

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Preface to the First Edition

I have been associated with the training programmes in international humanitarian law (IHL) at the Indian Society of International Law, New Delhi for almost a decade. As a student, I always felt the need for a textbook wherein the essentials of the ‘laws of conflict’ or ‘humanitarian law’ could be found. This prompted me to bring out this textbook on international humanitarian law (IHL). Though evidence of practices intended to alleviate the sufferings of war can be found in the writings of the ancient Indian and other civilizations, the modern codification of the customs and usages of war began with the Lieber Code (1863) during the American Civil War. A year later, the concerted efforts of Henry Dunant resulted in the adoption of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field at Geneva on 22 August 1864, containing ten articles, as the first international treaty on humanitarian law. The laws of war or IHL have since grown manifold and can be found in customary as well as treaty laws. The purpose of IHL is to protect combatants and non-combatants from unnecessary sufferings and to safeguard the fundamental human rights of persons who are not or no longer taking part in the conflict.

Today, the non-international armed conflict in Libya is drawing international attention. Gross violations of the rules of IHL are taking place, with the pro-government forces using warplanes and artillery to attack protesting citizens. The strife is causing a humanitarian crisis; tens of thousands are fleeing the country and seeking asylum in the neighbouring states. The conflict has reminded the world of the solemn declaration made in 2005, that where the governments manifestly failed in their sovereign duty, the international community, acting through the United Nations, would take timely and decisive action to honour the collective responsibility to protect (R2P) people against atrocity crimes. Libya today presents an occasion to redeem that pledge. There are reports that the President of Libya and others responsible for the suspected gross violations of humanitarian law would face a war crime trial at the International Criminal Court, the Hague. In this book, I have tried to discuss all the issues relating to IHL in today’s context.

The Regional Delegation of the International Committee of the Red Cross in New Delhi has supported me with advice and access to material from their library. In particular, I am thankful to Mr Christopher Harland, Regional Legal Advisor; Dr Burra Srinivas, Legal Adviser; and Ms K C Sowmya, Legal Officer, for their advice and help in bringing out this book. I also thank Prof Manoj Kumar Sinha (former Director, Indian Society of International Law) for his comments on a few chapters of the book.

I am obliged to Harvard University’s Program on Humanitarian Policy and Conflict Research (HPCR) for allowing me to quote portions from their 2010 Manual on International Law Applicable to Air and Missile Warfare.

I express gratitude to my wife, Ratna, for all her support and to Ms Medha and Ms Chandana for editorial assistance. My son, Aditya, has contributed with his helpful comments on certain technical aspects in the book, for which I am grateful to him. Finally, I thank Vij Publications, New Delhi for their professional cooperation in bringing out this edition.

— U C Jha

CHAPTER 1

International Humanitarian Law: Introduction

Introduction

War is as old as human civilization and the laws of war are probably as old as war itself. There has always been a general understanding of the necessity of having some kind of regulations during wars. There has also been a feeling that under certain circumstances, human beings, whether friends or foes, deserve some protection. In the wars fought around the world in ancient times, there was evidence of interesting customs and agreements with humanitarian elements. There were rules protecting certain categories of victims of armed conflicts, as well as regulations prohibiting the use of certain means and methods of warfare. These ancient customs might not have been adopted for a humanitarian purpose but with a purely tactical or economic objective; their effect was, however, humanitarian. For instance, the prohibition to poison water bodies was a customary practice and reaffirmed in modern treaties. Perhaps the main reason for the prohibition to kill prisoners of war was to guarantee the availability of future slaves, rather than to save the lives of former combatants. The existence of such customs can be found in cultures, regions and civilizations as diverse as Asia, Africa and Europe.

In Asia, the ancient scriptures are replete with detailed rules on waging a war, the area where a war will take place, methods of warfare, of the use of force, kinds of armed forces, weapons to be used, and so on. Weapons causing unnecessary suffering were prohibited and there were rules relating to the treatment of prisoners and civilians. All these rules were based on respect for human beings and considerations of humanity.

Sun Tzu, in The Art of War, the foremost classic of Chinese literature on military strategy, written around B.C. 500, spoke of some important requirements relating to humanity during combat: a commander must show intelligence, sincerity, humanity, courage and dignity; he may utilize captured enemy equipment but must respect prisoners of war; he should endeavour to win the victory without harming enemy military and civilian personnel and should avoid using needless violence; and he should not seek the total annihilation of an enemy. The principle of civilian protection was also accepted in the Japanese and Chinese traditions. There are numerous references to the protection of civilians, and specifically women and children, in the Asian texts. Similarly, Islamic tradition favours respect for the principle of civilian protection. The Prophet showed his disapproval of the killing of the old and women and children.

Manu Smriti, one of the oldest and probably the most important of the Smritis, contains the laws (conduct in life) that need to be followed in various orders of life and by persons of various tendencies (varnas).¹ Some examples of ‘smritis’ relating to the laws of war are follows.

When he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.

Let him not strike one who (in flight) has climbed on an eminence, nor a eunuch, nor one who joins the palms of his hands (in supplication), nor one who (flees) with flying hair, nor one who sits down, nor one who says ‘I am thine’;

Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight, nor one who is fighting with another (foe);

Nor one whose weapons are broken, nor one afflicted (with sorrow), nor one who has been grievously wounded, nor one who is in fear, nor one who has turned to flight; (but in all these cases let him) remember the duty (of honourable warriors).

Smaller kingdoms in the past, like the Meitei Kingdom (now known as Manipur) had written humanitarian tradition in the form of puya or manuscript called Chainarol that lays down the sacred code of conduct which two warriors in personal conduct are expected to follow.²

In Europe, in 1590, the Free Netherlands adopted Articles of War. In 1621, Sweden’s Adolphus published his Articles of Military Lawwes to Be Observed in the Warres, which were to become the basis for England’s later Articles of War. Those English Articles, in turn, became the basis for the United States’ first Articles of War. The 1648 Treaty of Westphalia was the first treaty which required the exchange of captured soldiers.³

Religious figures, powerful Kings, wise men and warlords from all continents have attempted to limit the consequences of war by making binding rules. In spite of their humanitarian importance, the ancient rules and customs suffered from serious drawbacks. First, their applicability was limited to specific regions; secondly they were very often limited to a specific war; and thirdly, their implementation was the sole responsibility of the belligerents. In the last 150 years or so, international rules have been made to limit the effects of war for humanitarian reasons. Usually called international humanitarian law (IHL), it is also known as the ‘law of war’ or the ‘law of armed conflict’.

International Humanitarian Law

IHL is a branch of international law which limits the use of violence in armed conflicts. IHL achieves this by: (i) sparing those who do not or no longer directly participate in hostilities (for example civilians; injured, sick or wounded soldiers; or those who have surrendered or been taken prisoners of war; and (ii) limiting the violence only to weaken the military potential of the adversary--the amount necessary to achieve the aim of the conflict. IHL can be defined as the whole of the international conventions or customary rules which are specifically intended to regulate humanitarian problems arising directly from both international or non-international armed conflicts, and which restrict the right of parties to the conflict to use means and methods of warfare of their choice and to protect people and objects affected by the conflict.

IHL is applicable in international armed conflicts as well as non-international armed conflicts. An international armed conflict means fighting between the armed forces of at least two States. A non-international armed conflict (or internal armed conflict) means fighting on the territory of a State between the regular armed forces and identifiable armed groups, or between armed groups. To be considered a non-international (or internal) armed conflict, fighting must reach a certain level of intensity and extend over a certain period of time. The provisions of Common Article 3 of the Geneva Conventions⁴ and Additional Protocol II apply in situations of non-international armed conflict. Internal disturbances in a country, riots, and struggles between factions or against the authorities are not considered non-international armed conflict. These situations are covered by the municipal law of the country.

IHL and International Law

IHL is part of the body of international law that regulates relations between states. It is difficult to answer as to when international law originated. However, if we consider international law as a set of substantive principles applying uniquely to ‘states’, then the seventeenth century could be considered as the starting time. International law establishes four criteria that must be established for an entity to be regarded as a State: (i) a defined territory; (ii) a permanent population; (iii) a government; and (iv) the capacity to conduct international relations. Under international law, a State has sovereignty over its territory and exercises authority over its nationals. It has the status of a legal person, with the capacity to make contracts, enter into international agreements and become a member of international organizations. The State also has the capacity to join with other states in making international law. For states to co-exist in an international community, they are obliged to follows certain norms: to refrain from intervening in the affairs of other states, to settle international disputes peacefully, to refrain from threat or the use of force, and to carry out treaty obligations in good faith. The chart on Page 6 shows the relationship between international law and IHL.

The Statute of the International Court of Justice, in Article 38, lists the main sources of international law as: international conventions,⁵ international customs⁶ and general principles of law⁷ in accordance with which the Court decides disputes. It further states that judicial decisions and the teachings of the most highly qualified publicists of various nations are subsidiary means for the determination of the rules of law. Though Article 38 of the Statute does not provide a hierarchy among the main sources of international law, there is a common belief that treaties are the most important sources of international law. Customary international law has historically preceded treaty law and has been a source of principles on which future treaties are based. For example, different traditions prohibit certain types of weapons, particularly poison, and this prohibition is now embodied in a number of important international treaties.

Chart 1: Relationship between International Law and IHL

The Sources of IHL

A. Customary Law

The origin of IHL, in fact, lies in the customs and usages followed by armies to minimize the miseries of war from ancient times. Many of the rules of IHL are considered part of customary international law⁸ and, therefore, mandatory for all parties to an armed conflict. Customary IHL fills in certain gaps in the protection provided to victims of armed conflict by treaty law. These gaps result either from the lack of ratification of relevant treaties or from the lack of detailed rules on non-international armed conflicts in treaty law. The advantage of customary law is that it is not necessary for a State to formally accept a rule in order to be bound by it, as long as the overall State practice on which the rule is based is accepted as law. Although most of IHL has now been codified in treaties, important aspects of belligerent activity, especially in naval warfare, continue to be regulated by customary law.

Customary IHL restricts the ability of States to opt out of the rules and adds to their morally binding character as they are seen as being embedded and deeply rooted in community values. An excellent example of this process is the ‘Martens Clause’, which was drafted by Feodor Martens in the preamble to the 1899 Hague Convention II.⁹ In addition, customary law rules are not restricted in their field of application. Many of them apply to all forms of conflict, whether international or non-international. The customary law rules of IHL bind all belligerents on both sides of a conflict. They also fill the gaps that exist in the treaty rules applicable in non-international armed conflicts, including targeting, proportionality, precautions in attack and the protection of civilians and civilian property.

Customary IHL continues to provide an important framework for the conduct of hostilities, including in recent armed conflicts in Iran, Afghanistan and Sri Lanka, and between Israel and Lebanon. In coalition warfare in Afghanistan, customary IHL represents the common rule applicable to all coalition partners. Joint operations must comply with the rules of customary IHL, although individual partners may still have wider obligations under the respective treaties they have ratified. The Rome Statute of the International Criminal Court is a good example of the crystallization of customary rules. Many of the components of crimes against humanity and war crimes were articulated for the first time in treaty form in the Rome Statute. The drafters of the Statute referred to customary law in formulating these crimes.

Advantages of Customary Rules of IHL: Custom is the oldest and the original source of international law as well as of law in general. Customary rules have the advantage that they do not require any express act of ratification or further acceptance by States. The following are the advantages of customary rules.

•    The customary rules of IHL bind all those who participate in armed conflict, whether they are parties to a specific treaty or not. They bind all belligerents on both sides of a conflict.

•    Customary rules are not restricted in their field of application. Many of them apply to all forms of conflict, whether international or non-international.

•    Customary rules fill the gaps that exist in the treaty rules applicable in non-international armed conflicts, including targeting, proportionality and precautions in attack.

•    They also greatly strengthen the weaker areas of treaty law, such as the protection of civilians and civilian property in times of internal armed conflict.

•    The customary rules of IHL are particularly important and relevant to regions prone to situations of armed violence and countries have a weak record of ratification of IHL treaties.

International law is continuously evolving. The existing treaties may not always accurately reflect the current status of the law. Because of the challenges associated with relying on treaties, customary law plays an important role. Customary norms develop through state practice and opinio juris (an opinion of the law). As this process is more flexible than that involved in treaty negotiation and ratification, it helps international law to keep pace with the dynamic and fast-paced world it regulates. Many of today’s armed conflicts occur outside the framework of the Geneva Conventions and their Protocols. In such conflicts, customary IHL takes on added importance.

The ICRC Study: In December 1995, the ICRC was mandated to prepare a report on customary rules of IHL applicable in international and non-international armed conflicts. In 2005, after extensive research and widespread consultation among experts, the ICRC study on customary IHL was released. Volume 1 of the study dealing with Rules contains a comprehensive analysis of the customary rules of IHL applicable in international and non-international armed conflicts. The 161 rules have been catalogued in six parts: (i) Principle of distinction, (ii) specifically protected persons and objects, (iii) specific methods of warfare, (iv) weapons, (v) treatment of civilians and persons hors de combat,¹⁰ and (vi) implementation. Of the 161 rules identified, 159 apply in international armed conflicts and 149 in non-international armed conflicts. The rules are accompanied by a commentary which explains why the rule in question was found to be customary. Volume 2 is in two parts and mentions relevant state practice, including legislation on each aspect of IHL.¹¹

Contribution of the International Court of Justice to IHL: The International Court of Justice (ICJ), as the principal judicial organ of public international law, contributes to the understanding of the fundamental values of the international community expressed in IHL. Judicial decisions as such are not a source of law, but the dicta by the International Court of Justice are considered as the best formulation of the content of international law in force.¹² The ICJ has dealt the questions of humanitarian law in two important cases: the Judgment of 27 June 1986 concerning Military and Paramilitary Activities in and against Nicaragua and the Advisory Opinion delivered ten years later on 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons.¹³

In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ acknowledges the basic unity of IHL. It makes clear that this branch of international law contains both the rules relating to the conduct of hostilities and those protecting persons in the power of the adverse party. The Court concluded: These two branches of the law (The Hague Law and Geneva Law) applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law. According to Judge Weeramantry:

Humanitarian law and custom have a very ancient lineage. They reach back thousands of years. They were worked out in many civilizations — Chinese, Indian, Greek, Roman, Japanese, Islamic, modern European, among others. Through the ages many religious and philosophical ideas have been poured into the mould in which modern humanitarian law has been formed. They represented the effort of the human conscience to mitigate in some measure the brutalities and dreadful sufferings of war. In the language of a notable declaration in this regard (the St. Petersburg Declaration of 1868), international humanitarian law is designed to ‘conciliate the necessities of war with the laws of humanity’.

The ICJ in the Case concerning Military and Paramilitary Activities in and against Nicaragua held that the four Geneva Conventions of 12 August 1949 are reflective of customary law and as such universally binding. The Court explained: The denunciation shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.

The International Criminal Tribunal for the former Yugoslavia (ICTY) operated on the basis of Article 3 of its Statute, which gave the Tribunal jurisdiction over ‘violations of the laws of customs of war’. Any conviction based on Article 3 of the Statute requires proof that the crime in question is part of customary international law. For example, in Prosecutor v. Hadzihasanovic, the Appeals Chamber of the Tribunal concluded that the prohibition of wanton destruction of cities, plunder of public or private property, attacks against cultural property and attacks on civilian objects was a customary norm whose violations, including in non-international armed conflict, entails individual criminal responsibilities under customary international law. The Appeals Chamber cited practice recorded in Volume II of the ICRC study on customary IHL.¹⁴

The rules of customary IHL have also been referred to in national judicial proceedings. For example, the Israeli Supreme Court, in a judgment in December 2005, on the ‘neighbour procedure’ used by the Israel Defence Forces (IDF) to capture persons, referred to the ICRC’s Rules of Customary IHL on the customary nature of the precautions to give effective, advance warning of attack (Rule 20) and to remove civilians from the vicinity of military objectives (Rule 24), as well as the prohibition of human shields (Rule 97). The Israeli Supreme Court, in another judgment in December 2006 on the policy of ‘targeted killing’, referred to the principles of distinction between civilians and combatants and between civilian objects and military objectives (Rules 1 and 7), the principle that civilians are protected against attack, unless and for such time they take a direct part in hostilities (Rule 6), the prohibition of indiscriminate attacks (Rule 11) and the prohibition on causing excessive incidental loss to civilian life, injuries to civilians, and damage to civilian objects (Rule 14).¹⁵

The ICRC study points out that the negotiation of the Rome Statute of the ICC was based on the premise that, to amount to a war crime to be included in the Statute, the conduct had to amount to a violation of a customary rule of international law.

Enforcement of customary IHL: In principle, there is no difference in the enforcement of treaty law and customary international law, as both are sources of the same body of law. Military commanders have the responsibility to ensure that their troops respect the law. In case of violation, IHL can be enforced through diplomatic means, including by international organizations, such as through measures adopted by the UN Security Council. Another means of the enforcement of the law is its application by national and international courts and tribunals, for example the trial of an individual responsible for a violation.

B. International Treaties

International conventions¹⁶ or treaties establishing rules expressly recognized by the contesting states are the main sources of law.¹⁷ Particularly since WWII, treaties have assumed a clear prominence as the primary source of law-making on the international plane. With the increased focus on relations between States that comes with globalization, there has been greater pressure and demand to codify rules affecting States. This codification has been done mainly through treaties because they are a relatively simple, clear and quick way of crystallizing existing international rules and developing new ones. The Hague Peace Conferences of 1899 and 1907 are often cited not only as a watershed in the institutionalization of international co-operation, but also as the first major international ‘law-making’ conferences. The Rome Statute is regarded by some as the most important multilateral instrument negotiated in the last decade of the twentieth century. The Rome Statute codifies international law relating to genocide, crimes against humanity and war crimes.

The present-day rules of IHL are contained in a number of conventions dealing with matters ranging from the prohibition on the use of certain weapons which cause indiscriminate damage and cause unnecessary suffering, to those that deal with means and methods of warfare. Today there are nearly 50 international treaties directly related to IHL.

In addition to customary rules of IHL and international treaties; judicial decisions, legal philosophers and military manuals also serve as important sources of IHL. Each source of law plays its own critical role in advancing the objectives of the law. The treaty law, as compared to customary IHL, takes a backseat in today’s conflicts for four main reasons: (i) ratification is required for treaties to apply and all treaties are not universally ratified; (ii) the characterization of an armed conflict is required prior to determining which treaty law applies, and this is not always easy; (iii) treaty law governing non-international armed conflicts is still rudimentary; and (iv) in coalition warfare, where the different coalition partners have not subscribed to the same treaties, only customary IHL provides a common set of rules that is applicable to all coalition partners.¹⁸

Development of IHL

A. Lieber Code

In 1862, the US President, Abraham Lincoln, asked Columbia University professor, Francis Lieber, to formulate rules of conduct in war for use by the Union army during the American Civil war. Professor Lieber produced Instructions for the Government of Armies of the United States in the Field, known as the Lieber Instructions or the Lieber Code. The Code was promulgated as General Order No. 100 by President Lincoln in 1863. Though the Lieber Code was not a treaty, it represented a codification of the current usages and customs of war in North America and Europe. The Lieber Code strongly influenced the further codification of the laws and customs of war and the adoption of similar regulations by other States.

The Lieber Code consisted of 157 articles and provided detailed rules on the entire range of land warfare, from the conduct of hostilities and the treatment of the civilians to the treatment of specific groups of persons such as prisoners of war, the wounded and so on. Some of the problems addressed by the Lieber Code are still relevant to the situations of contemporary armed conflicts such as guerrilla warfare, the status of rebels, the applicability of IHL in non-international armed conflicts and the penal sanctions for violations of laws of war.¹⁹ The Lieber Code was divided into ten sections relating to areas of conduct within conflict.

Section I: Martial Law; Military jurisdiction; Military necessity ; Retaliation.

Section II: Public and private property of the enemy; Protection of persons, and especially of women, of religion, the arts and sciences; Punishment of crimes against the inhabitants of hostile countries.

Section III: Deserters - Prisoners of war; Hostages; Booty on the battlefield.

Section IV: Partisans; Armed enemies not belonging to the hostile army; Scouts-Armed prowlers; War-rebels.

Section V: Safe-conduct; Spies; War-traitors; Captured messengers; Abuse of the flag of truce.

Section VI: Exchange of prisoners; Flags of truce; Flags of protection.

Section VII: The Parole.

Section VIII: Armistice; Capitulation.

Section IX: Assassination.

Section X: Insurrection; Civil War; Rebellion.

The Lieber Code represented a codification of the international customary law of the time and would be heavily drawn upon as a basis for subsequent Hague and Geneva law. Parts of the Code have been expressly withdrawn as they are no longer considered legitimate methods of warfare, for example:

Article 17: War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.

Article 18: When a commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.

Article 19: Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity.

Article 56: A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.

The Lieber Code created a distinction between the conduct that was permitted toward combatants and non-combatants. Non-combatants were clearly articulated as being protected from the ravages of the conflict. The Code also established the conditions that were to be followed for the treatment of prisoners of war by the capturing force. It followed the principle that all soldiers were to be treated equally regardless of their social, ethnic or economic origins. The particular concern behind this principle was for the treatment that the black soldiers of the Union force might receive if captured by the Confederacy.

B. The Geneva and The Hague Laws

IHL has two branches: the Geneva laws and the Hague laws. The Geneva Laws have been designed to safeguard military personnel who are no longer taking part in the fighting and people not actively involved in hostilities, i.e. civilians. The Hague laws establish the rights and obligations of belligerents in the conduct of military operations, and limit the means of harming the enemy. The two branches of IHL draw their names from the cities where each was initially codified. With the adoption of the Additional Protocols of 1977, which combine both branches, that distinction is now of merely historical and perceptive value.

C. The Geneva Convention of 1864

The beginning of modern IHL relates to the battle of Solferino in northern Italy between French, Italian, and Austrian forces in 1859. Henry Dunant, a businessman from Geneva, witnessed this carnage, in particular the miserable fate of the wounded left on the battlefield. He tried to alleviate the sufferings of the wounded and sick on the battlefield with the women of the surrounding villages. In 1862, Dunant published a short book, Un Souvenir de Sulferino (A Memory of Sulferino), in which he not only evoked the horrors of the battle, but also tried to find remedies to the sufferings he had witnessed. He invited the States to formulate some international principle, sanctioned by a Convention inviolate in character and give legal protection to the military wounded in the field. Dunant’s proposal was successful and a small committee, the ancestor of the International Committee of the Red Cross, was founded in Geneva. Its main objective was to examine the feasibility of Dunant’s proposals and to identify ways to formalize them. In 1863, the Geneva Committee persuaded the Swiss government to convene a diplomatic conference.

The conference met in Geneva and adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field on 22 August 1864. Thus, the modern IHL, consisting of 10 Articles, was born. The text of the Convention is as follows:

Article 1: Ambulances and military hospitals shall be recognized as neutral, and as such, protected and respected by the belligerents as long as they accommodate wounded and sick. Neutrality shall end if the said ambulances or hospitals should be held by a military force.

Article 2: Hospital and ambulance personnel, including the quarter-master’s staff, the medical, administrative and transport services, and the chaplains, shall have the benefit of the same neutrality when on duty, and while there remain any wounded to be brought in or assisted.

Article 3: The persons designated in the preceding Article may, even after enemy occupation, continue to discharge their functions in the hospital or ambulance with which they serve, or may withdraw to rejoin the units to which they belong. When in these circumstances they cease from their functions, such persons shall be delivered to the enemy outposts by the occupying forces.

Article 4: The material of military hospitals being subject to the laws of war, the persons attached to such hospitals may take with them, on withdrawing, only the articles which are their own personal property. Ambulances, on the contrary, under similar circumstances, shall retain their equipment.

Article 5: Inhabitants of the country who bring help to the wounded shall be respected and shall remain free. Generals of the belligerent Powers shall make it their duty to notify the inhabitants of the appeal made to their humanity, and of the neutrality which humane conduct will confer. The presence of any wounded combatant receiving shelter and care in a house shall ensure its protection. An inhabitant who has given shelter to the wounded shall be exempted from billeting and from a portion of such war contributions as may be levied.

Article 6: Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for. Commanders-in-Chief may hand over immediately to the enemy outposts enemy combatants wounded during an engagement, when circumstances allow and subject to the agreement of both parties. Those who, after their recovery, are recognized as being unfit for further service, shall be repatriated. The others may likewise be sent back, on condition that they shall not again, for the duration of hostilities, take up arms. Evacuation parties, and the personnel conducting them, shall be considered as being absolutely neutral.

Article 7: A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuation parties. It must in every case, be accompanied by the national flag. An arm-badge (brassard) shall also be allowed for individuals neutralized, but delivery thereof shall be left to the military authority. The flag and arm-badge shall bear a red cross on a white ground.

Article 8: The details of execution of the present Convention shall be regulated by the Commanders-in-Chief of the belligerent armies, according to the instructions of their respective Governments, and in accordance with the general principles laid down in this Convention.

Article 9: The High Contracting Parties have agreed to communicate the present Convention with an invitation to accede thereto to Governments unable to appoint Plenipotentiaries to the International Conference at Geneva. The Protocol has accordingly been left open.

Article 10: The present Convention shall be ratified, and the ratifications of it shall be exchanged at Berne, in four months or sooner if possible.

D. The Hague Conventions

The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands in 1899 and 1907, respectively, and were, along with the Geneva Conventions, among the first formal statements of the laws of war and war crimes. The First Peace Conference was held from May 18 and signed on July 29, 1899, and entered into force on September 4, 1900. The Hague Convention of 1899 consisted of four main sections and three additional declarations (the final main section is for some reason identical to the first additional declaration):

I - Pacific Settlement of International Disputes

II - Laws and Customs of War on Land

III - Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864

IV - Prohibiting Launching of Projectiles and Explosives from Balloons

Declaration I - On the Launching of Projectiles and Explosives from Balloons

Declaration II - On the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases

Declaration III - On the Use of Bullets Which Expand or Flatten Easily in the Human Body

The main effect of the Convention was to ban the use of certain types of modern technology in war: bombing from the air, chemical warfare and hollow point bullets.

The Second Peace Conference was held from June 15 to October 18, 1907, to expand upon the original Hague Convention, modifying some parts and adding others. It had a greater focus on naval warfare. It was signed on October 18, 1907 and entered into force on January 26, 1910. It consisted of 13 sections, of which 12 were ratified and entered into force:

E. Martens Clause

The Martens Clause was based upon and took its name from a declaration read by Professor von Martens, the Russian delegate at the Hague Peace Conferences in 1899. The Martens Clause was originally devised to cope with a disagreement between the parties to the Conference regarding the status of resistance movements in occupied territory, i.e., the ‘status of civilians who took up arms against an occupying force’. Large military powers argued that they should be treated as francs-tireurs²⁰ and subject to execution, while smaller states contended that they should be treated as lawful combatants. The Clause was originally formulated to resolve this particular dispute; however, it subsequently reappeared in various other treaties regulating armed conflicts. The Martens Clause has formed a part of the laws of armed conflict since its first appearance in the preamble to the 1899 Hague Convention with respect to the laws and customs of war on land. The Preamble to the 1899 Hague Convention II²¹, states:

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.

The Clause appears in a slightly modified form in the 1907 Hague Conventions:²²

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Today there is no formal agreement amongst humanitarian lawyers on the interpretation of the Martens Clause. According to Cassese Antonio, two features of the Clause are striking: (i) It is very loosely worded and has consequently given rise to a number of conflicting interpretations; (ii) Because of its appealing contents, the Clause has been very frequently relied upon in international dealings, restates by states in treaties, cited by international and national courts, invoked by organizations and individuals. The combination of these two features leads to conclusion that the Clause has become one of the legal myths of the international community.²³ It is subject to a variety of meanings: both narrow and expansive.

The Martens Clause has served as fundamental guidance in the interpretation of international customary law or treaty law. The International Military Tribunal at Nuremburg in Krupp case (1948) mentioned various provisions of the Hague Regulations on belligerent occupation and also quoted the Martens Clause: The preamble [to the 1989 and 1907 Hague Convention] is much more than a pious declaration. It is a general clause, making the usages established among civilized nations, the laws of humanity, and the dictates of public conscience into the legal yardstick to be applied if and when the specific provisions of the Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare. The Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Martic decision in 1996 found that shelling, which resulted in the killing of innocent civilians was a war crime. It violated the rules of both customary and treaty law prohibiting attacks on civilians. The Trail Chamber then added the prohibition against attack on civilians and the general principles limiting the means and methods of warfare also derive from the Martens Clause. According to the International Court of Justice, "....the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.²⁴

Modem Interpretations of the Martens Clause: The modem meaning of the Martens Clause is the subject of debate amongst the States, judges and scholars. The Martens Clause can be useful in three different ways: the Clause helps to interpret existing principles and rules of international law; the Clause has elevated the principles of humanity and the dictates of the public conscience to the status of independent sources of international law; or the Clause has influenced and motivated the development of international law principles.²⁵ The US has subscribed to the view that the Martens Clause merely clarifies the existence and applicability of customary international law not explicitly addressed by the agreements contained in multinational conventions. In practice, this interpretation of the Martens Clause is the most widely accepted, as no domestic or international court has fleshed out the scope of these dictates as independent sources of law. The overwhelming majority of cases that have interpreted the Martens Clause have used it in a supplemental fashion. The Clause has been generally cited to advance the idea that the principles of humanity and dictates of the public conscience are supplemental sources of international law used to bolster a finding that a practice contravenes international law or substantial legal principle. The broad view of the Martens Clause regards the principles of humanity and the dictates of the public conscience as independently enforceable sources of international law. Under this interpretation, belligerent actors in an armed conflict are bound not only by customary and treaty law, but also by the principles of humanity and the dictates of the public conscience.

The Martens Clause is important because it stresses the importance of customary norms in the regulation of armed conflicts. In addition, it refers to the principles of humanity and the dictates of the public conscience. It is important to understand the meaning of these terms. The expression principles of humanity is synonymous with laws of humanity--- the earlier version of the Martens Clause (Preamble, 1899 Hague Convention II) refers to laws of humanity; the later version (AP I) refers to principles of humanity. Article 1, paragraph 2 of AP I states: In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience. The principles of humanity are interpreted as prohibiting means and methods of war which are not necessary for the attainment of a definite military advantage. The Martens Clause provides a link between positive norms of international law relating to armed conflicts and natural law. The Martens Clause reinforces that the human being is the focus of IHL. The Clause must be read as the legal element that acknowledges the binding nature and autonomy of the elementary considerations of humanity and public conscience²⁶ as general minimum standards to be fulfilled.

F. Modern IHL Treaties

Initiated in the form of 10 articles in the Geneva Convention of 1864, contemporary humanitarian law has evolved in stages to meet the ever growing need for humanitarian aid resulting from developments in weaponry and new types of conflict. The following are the main IHL treaties in chronological order of adoption:

1864 Geneva Convention for the amelioration of the condition of the wounded in armies in the field.

1868 Declaration of St. Petersburg (prohibiting the use of certain projectiles in wartime).

1899 The Hague Conventions respecting the laws and customs of war on land and the adaptation to maritime warfare of the principles of the 1864 Geneva Convention.

1906 Review and development of the 1864 Geneva Convention for the amelioration of the condition of the wounded in armies in the field.

1907 Review of The Hague Conventions of 1899 and adoption of new Conventions.

1925 Geneva Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare.

1929 Two Geneva Conventions: 1. Review and development of the 1906 Geneva Convention, for the amelioration of the condition of the wounded in armies in the field; and 2. Geneva Convention relating to the Treatment of Prisoners of War (new).

1949 the four Geneva Conventions:²⁷

I Amelioration of the condition of the wounded and sick in armed forces in the field

II Amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea

III Treatment of prisoners of war

IV Protection of civilian persons in time of war.²⁸

1954 The Hague Convention for the protection of cultural property in the event of armed conflict.

1972 Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxic weapons and on their destruction (BWC).

1976 UN Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques (ENMOD).

1977 Two Protocols additional to the four 1949 Geneva Conventions, which strengthen the protection of victims of international (Protocol I) and non-international (Protocol II) armed conflicts. [The Geneva Conventions of 1949 and their Additional Protocols of 1977 contain almost 600 articles and are the main instruments of IHL]

1980 Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects (CCW), which includes:

•    Protocol I of 1980 on non-detectable fragments.

•    Protocol II of 1980 on prohibitions or restrictions on the use of mines, booby traps and other devices.

•    Protocol III of 1980 on prohibitions or restrictions on the use of incendiary weapons.

•    Protocol IV of 1995 relating to blinding laser weapons.

•    Revised Protocol of 1996 on prohibitions or restrictions on the use of mines, booby traps and other devices.

•    Amendment of 2001 relating to Article I of the CCW of 1980.

•    Protocol V of 2003 on Explosive Remnants of War.

1993 Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction (CWC).

1997 Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction.

1998 Rome Statute of the International Criminal Court.

1999 Protocol to the 1954 Convention on Cultural Property.

2000 Optional Protocol to the Convention on the Rights of the Child (CRC) on the involvement of children in armed conflict.

2004 Rules of Customary International Humanitarian Law released by the ICRC.

2005 Third Protocol Additional to the four 1949 Geneva Conventions Relating to Adoption of Additional Protective Emblem.

2008 Convention on Prohibition of the Use, Development and Destruction of Cluster Munitions.

2013 Arms Trade Treaty.

Jus ad bellum and Jus in bello

IHL developed at a time when the use of force was a lawful form of international relations, when States were not prohibited from waging war and they had the right to make war. Today the use of force between States is prohibited by a preemptory rule of international law; and there are two distinct ways of looking at war—the reasons you fight and how you fight. The Latin phrases jus (or ius) ad bellum and jus in bello describe the law governing resort to force and the law governing the conduct of hostilities. The phrase jus ad bellum, or just war defines when it is lawful to use force in international relations, i.e., to resort to armed conflict. The second phrase jus in bello, defines what is legal in an armed conflict. It is also known as the international humanitarian law or the law of armed conflict, which serves as guidelines for fighting once war has begun. It limits the use of violence in armed conflicts by protecting those who do not or no longer directly participate in hostilities and limiting the violence to the amount necessary to achieve the aim of the conflict. These two branches of international law are conceptually distinct, but related. For example, the concept of ‘necessity’ and ‘proportionality’ are present both in the jus ad bellum and jus in bello.²⁹

According to Walzer (2000), the moral reality of war is divided into two parts. War is always judged twice, first with reference to the reasons the States have for fighting, and second with reference to the means they adopt. The first kind of judgement is adjectival in character: we say that a particular war is just or unjust. The second is adverbial: we say that the war is being fought justly or unjustly....The two sorts of judgements are logically independent. It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought strictly in accordance with the rules. It is a crime to commit aggression, but aggressive war is a rule-governed activity. It is right to resist aggression, but resistance is subject to moral (and legal) restraints. The dualism of jus ad bellum and jus in bello is at the heart of all that is most problematic in the moral reality of war.³⁰

Jus ad bellum

Traditionally, States had full right to opt for war. The legal control on a State’s right to resort to war is a new phenomenon. The concept of jus ad bellum can be traced back to the Roman era. The Romans believed they had to please the gods in order to wage war. According to Cicero, a war was not just unless the aggressor (i) made an official demand for satisfaction within a time allotted for a response; and (ii) issued a formal declaration of war. It was, therefore, an issue of morality and righteousness.

The principles central to jus ad bellum are right authority, right intention, reasonable hope, proportionality and last resort. The principle of right authority suggests that a war is just only if waged by a legitimate authority. Such authority is rooted in the notion of state sovereignty and derived from popular consent. Even if their cause is just, individuals or groups whose authority is not sanctioned by society members cannot justifiably initiate war. According to the principle of right intention, the aim of war must not be to pursue narrowly defined interests, but rather to re-establish a just peace. This state of peace should be preferable to the conditions that would have prevailed had the war not occurred. Right intention is tied to jus in bello, and forbids acts of vengeance and indiscriminate violence. Just war must also have a reasonable chance of success, meaning there are good grounds for believing that the desired outcome can be achieved. The principle of proportionality stipulates that the violence used in the war must be proportional to the attack suffered. States are prohibited from using force not necessary to attain the limited military objective of addressing the injury suffered.

For example, if one nation invades and seizes the land of another nation, the second nation has just cause to launch a counter-attack in order to retrieve its land. However, if the second nation invades the first, reclaims its territory, and then also annexes the first nation, such military action is disproportional. In addition, the minimum amount of force necessary to achieve one’s objective should be used. The principle of last resort stipulates that all non-violent options must be exhausted before the use of force is justified. A just war can only be waged once all other diplomatic avenues have been pursued.

The concept of jus ad bellum developed at the beginning of the twentieth century after World War I. The international community attempted to prosecute individuals for crimes against peace. Articles 228-230 of the Treaty of Versailles mention prosecution of German combatants for violations of the laws and customs of war. The Versailles Treaty formally arraigned Kaiser Wilhelm II, the German ruler who initiated World War I, for a supreme offence against international morality and the sanctity of treaties. Kaiser Wilhelm II, however, did not face trial because he fled to Holland, where the Dutch government refused extradition. The next attempt to limit the states’ discretion in opting for war was made in 1919. Article 12 of the Covenant of the League of Nations provided:

The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within

six months after the submission of the dispute.

In Paris in 1928, several nations signed the General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact). The Pact renounced war as a solution for international controversies and dictated that all disputes be settled by pacific means. It established the illegality of war as an instrument of national policy. These attempts provided a backdrop to the post-1945 regime of the UN Charter. Article 2 (4) of the Charter provides: All States shall refrain 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. Though Article 2 (4) prohibits against the use of military force, the UN Charter at two places provides exception to this. The UN Security Council may authorize the use of military force if it determines that there is in existence a threat to the peace, breach of the peace, or an act of aggression. The second exception is the use of forces in self-defence, which the UN Charter refers to as an ‘inherent’ right of individual or collective self-defence under Article 51. This validates NATO agreement which provides that an attack on one state is an attack on all. It also allows for an individual State of superior military might to come to the aid of a weaker State under attack.

According to Dan Smith the components of jus ad bellum are: (1) Right authority: Only a legitimate authority has the right to declare a war. (2) Just cause: We are not only permitted but may be required to use lethal force if we have a just cause. (3) Right intention: In war, not only the cause and the goals must be just, but also our motive for responding to the cause and taking up the goals. (4) Last resort: We may resort to war only if it is the last viable alternative. (5) Proportionality: We must be confident that resorting to war will do more good than harm. (6) Reasonable hope: We must have reasonable grounds for believing that the cause can be achieved. (7) Relative justice: No state can act if it proposes absolute justice. (8) Open declaration: An explicit formal statement is required before resorting to force.³¹ A good example of jus ad bellum was India’s military action against Pakistan during the Kargil conflict in Jammu & Kashmir in 1999.³²

Jus in bello

Jus in bello, or laws governing the conduct of hostilities or IHL, serves as a guidelines for fighting well once war has begun. The belligerent armies are entitled to try to win, but there are restraints on the extent of harm, if any, that can be done to non-combatants and restraints on the means and methods of warfare. The idea underlying IHL finds resonance in the ancient notions of bravery and chivalry.³³ Today the most important IHL treaties are the four Geneva Conventions of 1949 and their Additional Protocols of 1977. In addition to the Geneva Conventions, there are about 40 IHL treaties on issues ranging from protection of cultural property to child soldiers and ban on or control of weapons in war. Customary international law also contains various provisions of IHL which have been recently compiled by the ICRC. The international human rights guarantee certain rights during international and non-international conflicts.

Jus in bello requires that the agents of war must be held responsible for their illegal actions. When soldiers attack non-combatants, pursue their enemy beyond what is reasonable, or violate other rules of fair conduct, they commit war crimes. Jus in bello provides that every individual, regardless of his rank or governmental status, is personally responsible for any war crime that he might commit. In certain circumstances, the military or civilian superior could be held responsible for a crime committed by his subordinate.³⁴

Recent counterterrorism measures, justified by reference to the principle of self-defence against the grave and imminent threat of ‘terrorism’, have involved violations of jus in bello by the US in Afghanistan and Iraq, including the toleration of a greater number of civilian casualties, and practices such incommunicado detention, torture and cruel and degrading treatment. Similarly, countries such as Colombia, Israel and Russia have invoked so-called self-defence measures to justify curfews, house demolitions, extra-judicial killings and other excesses, distorting the limits of ‘necessity’ and ‘proportionality’ in the process.³⁵

The Relationship between jus ad bellum and jus in bello: According to Moussa (2008), the relationship between jus ad bellum and jus in bello has been described as one of inevitable tension.³⁶ Contemporary jus ad bellum prohibits the use of force, with the exception of the right to individual or collective self-defence and Security Council enforcement measures. Jus in bello, on the other hand, has as its aim the conciliation of ‘the necessities of war with the laws of humanity’ by setting clear limits on the conduct of military operations. Theoretically, jus ad bellum and jus in bello are two distinct bodies of law; each has different historical origins and developed in response to different values and objectives. In addition, the consequences of violating jus ad bellum differ from those attached to violations of jus in bello.

The 1977 Additional Protocol I, in its preamble, clarifies both aspects. First, while IHL applies to violations of jus ad bellum, it does not justify them: The High Contracting Parties...expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistently with the Charter of the United Nations. Second, IHL must be respected by all sides, independent of who is right or wrong under jus in bello: Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflicts.³⁷ Jus in bello rules and principles apply equally to all combatants, whatever each belligerent’s avowed ad bellum rationale for resorting to force: self-defence, the restoration of democratic government, territorial conquest, or the destruction of a national, ethnic, racial, or religious group, as such.

The implications of the distinction are that jus in bello has to be completely distinguished from jus ad bellum, and must be respected independently of any argument concerning the latter. This is so because ‘the two sorts of judgement are logically independent. It is perfectly possible for a just war to be fought unjustly