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Published by Enhelion, 2019-12-02 09:31:03





“International Humanitarian Law applicable in armed conflicts” means international
rules, established by treaty or custom, which are specifically intended to solve
humanitarian problems that arise directly from international or non-international armed
conflicts. For humanitarian reasons, these rules protect persons and property that are, or
may be, affected by conflict by limiting conflicting parties’ rights to choose their methods
and means of warfare. The expression “international humanitarian law applicable in
armed conflict” is often abbreviated to International Humanitarian Law or Humanitarian
Law. The Rules and Regulations which have been laid down in International
Humanitarian Law, primarily through Treaties and Conventions, govern the relationship
between States. The Rules are legally binding on the states and have to be adhered to
under all circumstances.


The origins of IHL can be traced to at least the nineteenth century, the principles and
practices on which it is based are much older. IHL, also referred to as the law of armed
conflict or the law of war, is designed to balance humanitarian concerns and military
necessity. It subjects warfare to the rule of law by limiting its destructive effect and
mitigating human suffering. IHL covers two key areas:

• Protection and assistance to those affected by the hostilities.
• Regulation of the means and methods of warfare.

The sources of IHL are the same as those for international law in general:
➢ TREATY LAW:- - The two main treaty sources of IHL are the Hague Convention
(1907), setting out restrictions on the means and methods of warfare, and four
Geneva Conventions (GCs) (1949), providing protection to certain categories of
vulnerable persons. These are the wounded and sick in armed forces in the field;
the wounded, sick and shipwrecked members of armed forces at sea (GCII);
prisoners of war (GCIII); and protected civilians (GCIV). The fourth Geneva
Convention is particularly relevant to humanitarian protection and assistance. It
was established to prevent in future conflicts the scale of civilian suffering
experienced during the two World Wars.
The two branches of law covered in The Hague and Geneva Conventions are
further developed by the first two Protocols Additional to the Geneva Conventions
on the protection of civilians (1977). These are referred to as Additional Protocol I
(AP I), governing international armed conflict, and Additional Protocol II (AP II),
governing non-international armed conflict. The four Geneva Conventions have

achieved universal applicability as they have been universally ratified. The
Additional Protocols, however, have yet to achieve near-universal acceptance. The
United States and several other significant military powers (e.g. Iran, Israel, India
and Pakistan) are currently not parties to the protocols.1

➢ INTERNATIONAL CUSTOMS- A comprehensive study by the International
Committee of the Red Cross (ICRC) on IHL and customary law indicates that the
majority of rules enshrined in treaty law have received widespread acceptance and
have had a far-reaching effect on practice. They thus have the force of customary
law. Some provisions in the Hague and Geneva Conventions were reflections of
existing customary law, whereas others have developed into customary law. They
are therefore binding on all states regardless of ratification, and also on armed
opposition groups in the case of non-international armed conflict (Henckaerts,
2005). The application of customary international law is particularly significant
for non-international armed conflicts, as treaty law has remained limited in this


1. IHL only applies during armed conflict;

2. IHL does not decide on the legality of a conflict;

3. IHL is based on a balance between humanitarian and military considerations;

4. IHL does not prohibit all violence;

5. The central modern conventions of IHL are the Geneva Conventions of 1949;

6. In general, international armed conflict - conflicts between states - is much
more heavily regulated that internal or non-international armed conflict.


1. Principle of Distinction– War parties must have the ability to distinguish combatants
from the civilians and ensure that they should target only the former. The specific rules
where the principles of distinction is set out concerns Article 48 and 52 of additional
protocol 1 to the Geneva conventions. This defines who is a combatant and a military
object that can be lawfully attacked. Any direct attack against a civilian or civilian object
is not only a violation of IHL but also grave breach. Direct attacks against civilians
and/or civilians object are categorised as war crimes. Additionally any weapon which is
incapable of distinguishing between civilians/civilians object and fighters/military

1 International Legal Framework for Humanitarian Action,

objects is also prohibited under IHL. The principle is also a rule of customary
international law, binding on all states.

1.1.Principle of necessity and proportionality-It refers to the ability of restraint in the
amount of force applied in defeating the enemy that should be shown by parties to an
armed conflict. Under no circumstances should there be excessive loss of life in order to
achieve the goals set forth due to military. The article where proportionality is more
prevalent is in Article 51(5) (b) of API concerning the conduct of hostilities which
prohibits attacks when the civilian harm would be excessive in relation to the military
advantage sought. This is an area of hostilities where we often hear the term ‘collateral

1.2.Principle of Humane Treatment – Humanitarian Law has made it mandatory that all
civilians are to be treated humanely and with respect at all times. It also aims to prohibit
violence against the life of a civilian who is not a part or is no longer a part of the war.

Rule 87 deals with ‘Civilians and persons hors de combat must be treated humanely’ The
necessity of humane treatment for Civilians and persons hors de combat is much evident in
Article 3 of the Geneva Convention as well in other four Geneva Conventions This
necessity is recognised as a fundamental guarantee by Additional Protocol I (Article 75(1))
and Additional Protocol II(Article 4(1)) .

1.2.1. Principle of non-discrimination – The fundamental rights of every person shall be
secured whether or not he is involved in the war.

1.2.2. Preferential treatment to Women and Children – Preferential treatment to women
and children to ensure respect and protection of the same from the effects of war. The
Law prohibits children below 18 years from taking part in the hostilities.

IHL, the principle of which can be found in all major religions and cultures, out only
basic protections, but ones which look to demonstrate that even during armed conflict
there is some common sense of and respect for humanity. Modern IHL is not naive
and accepts that harm, destruction and death can be lawful during armed conflict. IHL
simply looks to limit the harm, and the principle of humanity is very much at the heart
of this ambition. Many rules of IHL are inspired by this notion, specifically those
inspired by this notion, specifically those setting out protections for the wounded and

Broadly, Humanitarian Law recognizes three types of armed conflict. They are as

1.3.1. International armed conflict –An International Armed Conflict refers to “all cases
of declared war or of any armed conflict that may arise between two or more high
contracting parties, even if the state of war is not recognized, the convention shall
also apply to all cases of partial or total occupation of the territory of a high
contracting party even if the said occupation meets with no armed resistance.

1.3.2. Internationalized armed conflict – Internationalized Armed Conflict is a relatively
new classification under Humanitarian Law. This refers to a situation when a war
starts between two different groups who are fighting internally, but are supported by
two different states. This type of conflict occurred in Republic of Congo in 1998.

1.3.3. Non international armed conflict-Non-International armed conflict refers to
‘‘armed conflicts that are non-international in nature occurring in one of the High
contracting parties”. A requirement of this type of conflict is one of the parties should
not be involved with the Government. In addition, Common Article 3 also mandates
that this type of conflict does not include riots and sporadic acts of violence. The
difference between a disturbance and armed conflict has not been defined in concrete
sense. Since the definition does not finds its place in concrete terms, it differentiate
acts of mere disturbance from armed conflict, reliance has been placed on the
political will to distinguish the same.

Modern law defines two features of a conflict – the intensity of violence and the level of
organisation among the parties to the conflict. Non-fulfilment of one of the features would be
mere disturbance. The most visible example of non-international armed conflicts is internal
conflicts wherein there is an increased tension and acts of violence within the country for a
specified duration of time.


Humanitarian Law mandates the rules and regulations for protection to be provided under
the following situations:

A. INTERNANTIONAL ARMED CONFLICT- Protection is given to the
following persons:

• i) Land warfare – Wounded or sick military personnel and members of the armed
forces’ medical services

• ii) Naval Warfare – wounded, sick or shipwrecked military personnel and
members of the naval forces’ medical services;

• iii) Prisoners of war
• iv)Civilian population which including foreign civilians, civilians in territories

which have been occupied, medical and religious personnel and civil defence

B. NON INTERNATIONAL ARMED CONFLICTS – Apart from the armed forces,
protection is given to the following persons:

• Wounded or sick fighters
• People deprived of their freedom as a result of the conflict.
• Civilian population.
• Medical and Religious Personnel

Due importance is to be given to the fact that the conditions applicable under Protocol II
supersede those under Article 3. Hence, International Humanitarian Law also becomes
applicable to the armed forces, whether they are actively involved or not in the conflict.

In conclusion, internal armed conflicts come under State sovereignty and hence the State is
the authority to devise rules and regulations in such type of conflicts which may not be in
agreement with the rules and regulations to be followed in an armed conflict. However, a
minimum standard has been prescribed pertaining to the rules and regulations during a
conflict from which is binding on the States.


Methods of warfare are the tactics employed in conflicts vis a vis an enemy. Means of
warfare, then, are the weapons or weapons systems used. As it was described earlier, the only
and sole objective in war is to weaken the strength of an adversary in conflicts, is to weaken
and overpower the opponent’s military forces. War history highlights the necessity to restrict
the use of force in order to limit the risks of extermination and total destruction of the enemy.
Even more problematic is that in times of increasing non-international armed conflicts, the
respect for methods of warfare getting more and more problematic, as the means of opposed
armed forces are in severe imbalance. While the lack of balance may be noted in both
international and non-international armed conflicts, in non-international armed conflict the

lack of balance is further intensified by the fact that the conflict situations oppose national
armed forces with armed groups that do not enjoy comparable structure or means.

The expression 'means of warfare' appears often in combination with the expression 'methods
of warfare' IHL. Part III, Section I of Additional Protocol I to the Geneva Conventions is
called 'Methods and Means of Warfare'. Art. 35 of that Section enunciates 'Basic rules', two
of which explicitly mention 'means of warfare’, while art. 36 in the same section carry the
title 'new weapons' and refer to the employment of 'a new weapon, means or method of
warfare'. Distinction between means and methods is, was often blurred in the legal
codifications. Art. 101 of the above mentioned Lieber Code describes deception in war as a
'means of hostility', the 1899 and 1907 Hague Regulations use the term 'means of injuring the
enemy' in art. 22 to circumscribe a range of military activities not limited to specific
weapons, and art. 21 of the 1922/1923 Hague Rules on Air Warfare refers to 'The use of
aircraft for propaganda purposes' as a 'means of warfare' and art. 14 of the ICRC's 1956 Draft
Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War
contains an article bearing the title 'Prohibited methods of warfare' but pertains to specific
weapons. In the end, it is about the weapon’s effects that will always result from a
combination of its design and the manner in which it is used for warfare.

The selections of methods and means of warfare cannot follow arbitrarily, but must be
deliberately chosen. International law restricts the manufacture, employment and utilization
of certain weapons. In particular, those that strike civilians and combatants indiscriminately
or causing damage that is extensive or basically irreversible and is disproportionate to any
specific military advantage (see also Rules 7 to 24 of the customary IHL study). Moreover,
IHL prohibits wanton violence and destruction. It requires that any means of violence

• be justified by a real and direct military necessity,
• be directed to a military objective, and
• be proportionate to the threat.

The above-mentioned principles are known as the principles of distinction, military necessity
and proportionality. In the assessment of the principle of proportionality, incidental loss of
civilians by the attack of a military objective and the duty to take necessary precautions to
limit them must be accounted for.

Essentially, IHL outlaws:

• The use of means and methods of warfare of a nature to cause superfluous injury or
unnecessary suffering (API Art. 35; Art. 22 of the rules of the 1907 Hague
Conventions; and the 1868 Saint Petersburg Declaration);

• Carrying out attacks with the goal that there will be no survivors—in other words,
giving no quarter (API Arts. 40, 41; Art. 35 of the 1907 Hague Convention on the
laws and customs of war). Rule 46 of the customary IHL study provides that ordering
that no quarter will be given, threatening an adversary therewith or conducting
hostilities on this basis is prohibited.”


This initial Committee became the ICRC, the ‘Committee of Geneva’. ICRC’s first matter
of action was to request the Swiss Federal Government to convene a diplomatic
conference in order to adopt an international convention on the protection of the wounded
and sick soldiers. Shortly after, the Conference of Geneva adopted the first Geneva
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.
With two world wars following, the role and importance of the ICRC grew to support,
ameliorate and protect civilians, wounded/sick and prisoners of war. The ICRC increased
its efforts and lobbied state governments to introduce international rules, i.e. Hague
Conventions to governing the way wars were conducted. By the end of World War I, the
ICRC urged for an end to the use of chemical warfare. Discussions and a treaty that
followed outlawed the use of chemical weapons. The ICRC continued its efforts, in
particular after World War I, to expand the protection of war victims, entering in the new
Geneva Convention that covered prisoners of war. However, the ICRC was unable to
persuade state governments to adopt an international agreement to protect civilians before
the outbreak of World War II, rendering tens millions of people without specific

In its legal sense, the ICRC holds a hybrid status. While it is constituted as an association
under Swiss private law, it is equipped with international rights and duties under treaty law -
making it an international actor and also a subject of public international law. This means the
ICRC holds rights and obligations on the international plane as it holds international legal

personality. In art. 5 of the Statute of the International of the Red Cross and the Red Crescent
Movement the ICRC enunciate its general statement about the ICRC’s mission:

1. The International Committee, founded in Geneva in 1863 and formally recognized in the
Geneva Conventions and by International Conferences of the Red Cross, is an independent
humanitarian organization having a status of its own. It co-opts its members from among
Swiss citizens.

2. The role of the International Committee, in accordance with its Statutes, is in particular:
a) to maintain and disseminate the Fundamental Principles of the Movement, namely
humanity, impartiality, neutrality, independence, voluntary service, unity and universality;
b) to recognize any newly established or reconstituted National Society, which fulfils the
conditions for recognition set out in Article 4, and to notify other National Societies of such
c) to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the
faithful application of international humanitarian law applicable in armed conflicts and to
take cognizance of any complaints based on alleged breaches of that law;
d) to endeavour at all times—as a neutral institution whose humanitarian work is carried out
particularly in time of international and other armed conflicts or internal strife—to ensure the
protection of and assistance to military and civilian victims of such events and of their direct
e) to ensure the operation of the Central Tracing Agency as provided in the Geneva
f) to contribute, in anticipation of armed conflicts, to the training of medical personnel and
the preparation of medical equipment, in cooperation with the National Societies, the military
and civilian medical services and other competent authorities;
g) to work for the understanding and dissemination of knowledge of international
humanitarian law applicable in armed conflicts and to prepare any development thereof;
h) to carry out mandates entrusted to it by the International Conference.

3. The International Committee may take any humanitarian initiative which comes within its
role as a specifically neutral and independent institution and intermediary, and may consider

any question requiring examination by such an institution.

4. a) It shall maintain close contact with National Societies. In agreement with them, it shall
cooperate in matters of common concern, such as their preparation for action in times of
armed conflict, respect for and development and ratification of the Geneva Conventions, and
the dissemination of the Fundamental Principles and international humanitarian law.

b) In situations foreseen in paragraph 2 d) of this Article and requiring coordinated assistance
from National Societies of other countries, the International Committee, in cooperation with
the National Society of the country or countries concerned, shall coordinate such assistance in
accordance with the agreements concluded with the Federation.2


In today’s world, civilians are the primary victims of armed conflict. The nature of conflicts
of the 21st century has challenged the application and respect for the Humanitarian Law with
regards to the classification and the use of new technologies. Understanding and responding
to these challenges is the need of the hour to ensure that Humanitarian Law performs its
functions in such situations. The complexity of armed conflicts has increased the discussion
regarding the points of distinction the two types of armed conflicts since there is a very thin
line of difference between the two. The impact of an internal conflict, in today’s times, within
a State has affected the world community at large.

A bigger complexity in the form of overlap between the two legal regimes of Humanitarian
Law and Human Rights law is affecting the conduct of military operations, detention-related
issues and use of force in conflicts as well as extraterritorial targeting of persons. Presently,
the utmost concern is the protective scope of Humanitarian Law during a conflict by
providing relief actions, subject to the agreement of the State and also in adverse situations.
However, the main obstacles are humanitarian access and political and security-related
concerns which become a hindrance in providing assistance to the civilians. The

2 International Humanitarian Law,

extraterritorial military operations have given rise to new forms of military presence in the
territory of a State. This has refocused attention on:

1. Rights and duties of the Occupying State.
2. Regulation of the use of Force in Occupied State.
3. Applicability of Law of Occupation to UN forces.

Multinational forces have now evolved and hence have been assigned the duty of:

1. Conflict prevention
2. Peace keeping
3. Peace enforcement
4. Peace building.

The Multinational organisations would use force to achieve the objectives mentioned above.
Questions arise as to application of Humanitarian Law to justify their objectives.

New technologies in the form of remote-controlled drones have entered the battlefield.
Cyberspace has opened a new domain in the world of conflicts. It is anticipated that
automated weapons such as robots shall be used by States in the future. In such situations,
application of Humanitarian Law poses legal and practical challenges for ensuring that such
newly founded weapons comply with existing norms. The intermingling of the armed groups
with the civilians, thereby violating the Humanitarian Law, has been used as a justification by
some armies to ignore all the precautions as enforced by Humanitarian Law. Consequently,
the effect of using explosive weapons in densely populated areas on civilian population
continues to violate the norms of the Law. In addition, hostilities against government within a
State have exposed the civilians to the consequences of the same. Inadequate regulation and
misuse of conventional weapons posed an on-going challenge to the protection of civilians.
According to the Geneva Convention, States are under an obligation to prohibit transfer of
arms and ammunition to the possession of persons likely to violate the provisions of
Humanitarian Law.

Challenges posed to Humanitarian Law also take the form of Terrorism as being an act of war
committed against the State. It should be noted that armed conflicts and acts of terror are
governed by different bodies of law, however they have become synonymous due to the
impact, it causes on public domain. The confusion caused by the above leads a complete

disregard for the Humanitarian Norms by a non-State armed group. It is pertinent to note that
merely designating a non-State armed group as ‘terrorist group’ has consequently impeded
humanitarian action.

Humanitarian Law has been continuously challenged by the changes and evolutions in armed
conflict. It has become a constant priority for International Red Cross Committee to evolve
the norms of Humanitarian Law so that they adequately address the ground reality of
contemporary wars and also to aid the victims of armed conflict.


Sadly, there are countless examples of violation of international humanitarian law.
Increasingly, the victims of war are civilians. However, there are important cases where
international humanitarian law has made a difference in protecting civilians, prisoners,
thesick and the wounded, and in restricting the use of barbaric weapons. Given that this
body of law applies during times of extreme violence, implementing the law will always
be a matter of great difficulty. That said, striving for effective compliance remains as
urgent as ever.

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