Basic Principles of International Humanitarian Law: Principle of Humanity (4).

 

Basic Principles of International Humanitarian Law: Principle of Humanity(4) 

Hugo Grotius the earliest writer on international law, advocated for humane behaviour even in warfare 'lest by imitating wild beasts too much we forget to be human'. Hence we move on to the fourth principle of international humanitarian law. 

4. Principle of Humanity (and Prohibition of Unnecessary Suffering/Superfluous Injury)

All persons affected by armed conflict must be treated humanely, without adverse distinction. It is forbidden to inflict suffering or injury beyond what is necessary to achieve legitimate military aims. Weapons and methods of warfare that cause superfluous injury or unnecessary suffering are prohibited.

Statutory Authority:

Common Article 3 to the four Geneva Conventions (1949): Provides minimum protections in non-international conflicts, prohibiting violence to life and person, torture, cruel treatment, and outrages upon personal dignity.

Additional Protocol I, Article 35(2): 'It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.'

Judicial Authority:

The ICTY in Prosecutor v. Čelebići (1998) affirmed that elementary considerations of humanity underlie the entire body of the IHL. The ICJ has repeatedly invoked humanity as a guiding principle, including in the Nuclear Weapons opinion.

Arrest other than to wound. Wound other than to kill. If necessary, kill humanely. 

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Basic Principles of International Humanitarian Law: Principle of Precautions (3)

Basic Principles of International Humanitarian Law: Principle of Precautions (3)

3. Principle of Precautions in Attack (and Against the Effects of Attacks)

International Humanitarian Law encompasses the rules and principles that regulate the conduct of war. Through several principles and rules of engagement in war, the International Humanitarian Law seeks to mitigate the egregious effects of war and protects certain individuals. The principle of precautions oblige parties to the war to take constant care to spare civilians and civilian objects during military operations. This includes active duties for attackers (e.g., verifying targets, choosing appropriate weapons and tactics) and passive duties for defenders (e.g., not locating military objectives near civilians where feasible).

Statutory Authority:

Additional Protocol I, Article 57 (Precautions in Attack): Requires doing everything feasible to verify that targets are military objectives, choosing means and methods that minimize incidental civilian harm, and canceling or suspending attacks if they may be disproportionate. Advance warnings must be given when circumstances permit.

Article 58 (Precautions Against the Effects of Attacks): Defenders must, to the extent feasible, remove civilians from the vicinity of military objectives, avoid locating military objectives near densely populated areas, and take other protective measures.

Customary rules (ICRC Rules 15–21) extend these obligations to non-international armed conflicts.

Judicial Authority:

The ICTY in Prosecutor v. Blaškić (2000) and related cases has clarified the "feasible" standard as what is practicable in the circumstances, balancing military and humanitarian considerations. Tribunals have stressed that commanders must use available intelligence and technology to minimize harm.

This principle operationalizes distinction and proportionality in practice.

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Basic Principles of International Humanitarian Law: Principle of Proportionality (2).

 Basic Principles of International Humanitarian Law: Principle of Proportionality (2). 

2. Principle of Proportionality

This principle advocates that when targeting a legitimate military objective, an attack is prohibited if it is expected to cause incidental civilian harm (loss of life, injury, or damage to civilian objects) that would be excessive in relation to the concrete and direct military advantage anticipated. The principle recognises that some collateral damage may occur but sets a strict limit on it.

Statutory Authority:

Additional Protocol I, Article 51(5)(b): An attack is indiscriminate (and thus prohibited) if it "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

Also, in Rule 14 International Committee of the Red Cross (ICRC) it recognises this principle as a customary law. This implies that it is applicable in both international and non-international armed conflicts. It requires a balancing exercise by the attacker, considering factors such as the accuracy of weapons, location of targets, and available intelligence.

Judicial Authority:

The ICTY in Prosecutor v. Kupreškić (2000) described proportionality as a fundamental rule requiring commanders to weigh anticipated civilian harm against military gain. In Galić, the Tribunal further elaborated on its application to shelling campaigns.

The ICJ in the Nuclear Weapons opinion (1996) affirmed proportionality and distinction as central to IHL. More recent jurisprudence, including ICTY cases like Prlić et al. (2017), has examined proportionality in the context of urban warfare and shelling, emphasizing that the assessment must be based on information reasonably available at the time.

Proportionality is closely linked to distinction: an attack that fails the proportionality test becomes unlawful even if directed at a valid target.

In conclusion, this principle guides against the use of means and methods of warfare which is above the military objectives in an armed conflict. Therefore an attack is prohibited if it is expected to cause incidental civilian harm (loss of life, injury, or damage to civilian objects) that would be excessive in relation to the concrete and direct military advantage anticipated.

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Basic Principles of International Humanitarian Law : Principle of Distinction (1)

Basic Principles of International Humanitarian Law : Principle of Distinction (1)

International humanitarian law (IHL), otherwise known as the law of armed conflict or the law of war, is a branch of public international law that regulates the conduct of armed conflicts. Its primary purpose is to limit the effects of war by protecting persons who are not or are no longer participating in hostilities (such as civilians, wounded soldiers, prisoners of war, and medical personnel) and by restricting the means and methods of warfare. IHL applies in both international armed conflicts (between states) and non-international armed conflicts (between a state and non-state armed groups or between such groups), though the scope of rules may differ.

The basic principles of IHL are fundamental in armed conflict. They strike a balance between military necessity (legitimate military goals) and humanity (the obligation to minimize suffering and protect human dignity). The first principle that will be considered is the principle of distinction.

 

1. Principle of Distinction

The principle of distinction requires parties to an armed conflict to differentiate at all times between civilians (and civilian objects) and combatants (and military objectives). Attacks may only be directed against the latter; civilians and civilian objects must never be the object of attack. This is often described as one of the "cardinal principles" of IHL.

Statutory Authority

Pursuant to Article 48 Additional Protocol I (1977) :

 "In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

Article 51(2): The civilian population as such, as well as individual civilians, shall not be the object of attack.

Article 52(2): Defines a military objective as one that "by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."

This principle is also rooted in customary law (ICRC Customary IHL Study, Rule 1) and applies in both international and non-international armed conflicts. Indiscriminate attacks (those not directed at a specific military objective, or whose effects cannot be limited) are prohibited under Article 51(4) and (5).

Judicial Authority

The International Court of Justice (ICJ) in its Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) identified distinction as a "cardinal principle" of IHL, forming part of the fabric of humanitarian law and applying to all weapons and methods of warfare.

Furthermore, the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Galić (2003) convicted the accused for crimes involving indiscriminate attacks on civilians in Sarajevo, affirming that the prohibition on attacking the civilian population as such is a fundamental rule of customary IHL applicable in all conflicts. Similarly, in Prosecutor v. Strugar (2005), the ICTY addressed shelling of Dubrovnik, reinforcing the duty to distinguish.

The principle extends to prohibiting attacks on persons hors de combat (out of the fight, such as the wounded, surrendering soldiers, or detainees).

In conclusion, the cardinal principle of distinction in armed conflict advocates the protection of civilian and civilian objects during the conduct of the armed conflict. 

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