SOURCE AND FORMS OF HUMANITARIAN

LAW

PRESENTED BY : ASHMITA ACHARYA

LL.B 5TH YEAR

Concept of Humanitarian law

• International humanitarian lawcomprises a set of rules, establishedby treaty or custom, applicable insituations of armed conflict. Asnoted, it is inspired by considerationsof humanity and the mitigation ofhuman suffering.

• Although the origins of IHL can betraced to at least the nineteenthcentury, the principles and practiceson which it is based are much older.

• International humanitarian law, alsoreferred to as the law of armedconflict or the law of war, is designedto balance humanitarian concernsand military necessity.

• It subjects warfare to the rule of lawby limiting its destructive effect andmitigating human suffering. IHLcovers two key areas:

1. Protection and assistance to thoseaffected by the hostilities

2. Regulation of the means andmethods of warfare

Sources of International Humanitarian Law

• International Humanitarian Lawconcept is clearly emerged from 19th

century , even though, it was inaction from more late days.

• Therefore, source of IHL seems to bebroader and can be categorized intodifferent branches.

• Thus, it’s sources can be divided into two period of time.

•1. Historical Source

•2. Modern Source

Historical Source

• To identify the sources of IHL is toundertake a historical study of thedevelopment of the laws of war. IHLtreaties have often been developedin response to State behavior inspecific wars – often leading to thecharge that IHL is ‘one war behindreality’.

A. Battle of Solferino

• A Swiss businessman, Henri Dunant,who was travelling through northernItaly, witnessed the aftermath of theJune 1859 Battle of Solferino, wheretens of thousands of wounded anddying soldiers had been left on thebattlefield by their retreating armies.

• Appalled that no systematic reliefwas being provided to these soldiers,Dunant rallied the townsfolk ofnearby Castiglione to provide water,food, and medical assistance. Uponhis return home, Dunant wrote of hisexperience; his work Un Souvenir deSolferino (A Memory of Solferino)became a best seller.

• One of Dunant’s suggestions was forthe creation of an international bodythat could coordinate relief measuresfor the wounded in the armed forcesduring wartime.

• In conjunction with a Swisscharitable organization (theprecursor to the InternationalCommittee of the Red Cross

…… Dunant lobbied Europeangovernments to implement hissuggestions.

• This advocacy resulted in theEuropean States drafting andadopting what would become the1864 Geneva Convention.

B. 1864 Geneva Convention

• The first multilateral internationallaw treaty on armed conflict was the1864 Geneva Convention for theAmelioration of the Condition of theWounded in the Field

• which provided that soldiersrendered hors de combat due toillness or injury were to be protectedand cared for, regardless of theirnationality or allegiance.

• It also provided for the protection ofmedical and religious personnel; andrespect for the execution of theirduties in wartime.

C. First Hague Peace Conference

• The Conference met with the aim ofadopting a unified set of regulationsregarding the conduct of armedconflict.

• To that end, three conventions andthree declarations relating to themeans and methods permissible inarmed conflict were drafted andadopted.

D. Second Hague Peace Conference

• The Conventions and Declarations wererevisited at the second PeaceConference at The Hague in 1907,where ten conventions were adoptedcovering the settlement of internationaldisputes, the laws and customs of waron land, and rules regarding navalwarfare – these are known as the HagueRegulations of 1907.

E. 1925 Geneva Protocol

• The Hague Regulations were the firstinternationally applicable documentsregarding the conduct of parties toan armed conflict. However, theexperiences during World Wars I andII provided the impetus forconsiderable revision and expansionof many aspects of the law of armedconflict.

• The first revisions and developmentscame with the adoption of the 1925Geneva Protocol for the Prohibitionof Poisonous Gases andBacteriological Methods of Warfare,adopted in response to thewidespread devastation caused bythe use of poisonous gas during theFirst World War.

• The Protocol banned theemployment of poison gases as wellas any kinds of bacteriologicalwarfare.

F. Geneva Conventions

• The next major development camewith the adoption, in 1929 of twoGeneva Conventions, one for theprotection of Prisoners of War, andthe second on Wounded and Sick inArmies in the Field.

• These two conventions wereeventually replaced in 1949 with fourconventions:

• Geneva Convention (I) for theAmelioration of the Condition of theWounded and Sick in Armed Forcesin the Field;

• Geneva Convention (II) for theAmelioration of the Condition ofWounded, Sick and ShipwreckedMembers of Armed Forces at Sea;

• Geneva Convention (III) Relative tothe Treatment of Prisoners of War;and

• Geneva Convention (IV) Relative tothe Protection of Civilian Persons inTime of War.

• These Conventions introduced a raftof new rules for the protection ofpersons in time of war, includingrules for the protection of persons inoccupied territory and for theprotection of prisoners of war(POWs).

• The Geneva Conventions have thedistinction of being the firstmultilateral treaty in history toachieve universal ratification; by2008 every country in the world wasa party to the Conventions.

G. Common Article 3

• The Geneva Conventions alsointroduced what is known asCommon Article 3 – the first piece ofinternational law that regulatedconduct in non-international armedconflicts.

• Common Article 3, so called as it iscommon to all four Conventions, setsdown some limited but fundamentalprinciples governing conduct in non-international armed conflicts.

H. Additional protocol I

• Additional Protocol I provides for itsapplication in situations that aredeemed to be:

• Armed conflicts in which peoples arefighting against colonial dominationand alien occupation and againstracist regimes in the exercise of theirright of self-determination, asenshrined in…

…the Charter of the United Nationsand the Declaration on Principles ofInternational Law concerningFriendly Relations and Co-operationamong States in accordance with theCharter of the United Nations.

• Protocol I also brought aboutsomething of a merger betweenHague Law and Geneva Law, in thatprovisions regarding the protectionof civilians and participants as well asrules on the means and methods ofwarfare were combined in the onedocument.

I. Additional Protocol II.

• The increased frequency of non-international armed conflicts in thepost-World War II era was also causefor concern. Along with amendmentsto the international law of armedconflict, changes were also made tothe law of non-international armedconflicts, with the adoption ofAdditional Protocol II.

• Protocol II was designed to developthe law of internal armed conflictbeyond the limited concepts outlinedin Common Article 3

J. Weapons limitation

• From the 1970s onwards, numerousweapons limitation treaties weredebated and adopted.

• The Convention contains a numberof protocols, which prohibit or limitthe use of:

• weapons that injure by fragmentswhich are not detectable in humanbody by X-rays (Protocol I);

• on-detectable anti-personnel mines(Protocol II);

• incendiary weapons (Protocol III);and

• laser weapons that cause permanentblindness (Protocol IV).

• The fifth protocol to theConventional Weapons Conventionrequires parties to the Protocol clearany unexploded ordnance, such ascluster bombs, land mines, andexplosive weapons stockpiles, at thecessation of hostilities.

Modern Source

• Modern international humanitarianlaw is found in treaties andcustomary international law.

Treaties

• Treaties are written internationalagreements between States,governed by international law.Treaties can go by many names,including conventions, agreements,and instruments; treaties that relateto or attach in some way topreviously adopted treaties are oftencalled protocols.

• Treaties have the advantage ofexpressly setting out bindingobligations for States in theirconduct.

• However, States are often permittedto make reservations to treaties,whereby a State can modify thescope of the legal obligation owed bythe State under the treaty.

• Treaties also require a certainnumber of States to ratify before thetreaty can have legal effect.

Custom

• Customary international law is aform of law that derives from twoelements – State practice and what isknown as opinio juris – the beliefthat the practice is required by law.Identifying custom relies on lookingto certain elements including:

• the degree of consistency anduniformity of the State practice;

• the generality and duration of thepractice; and

• the interests of specially affectedStates.

• There is a wealth of treaty lawrelating to armed conflict.

• However, the importance ofcustomary internationalhumanitarian law should not beoverlooked.

• Customary international law has thepotential to evolve and develop at afaster pace than treaty law, and canbind States where treaty law doesnot; customary international lawthus allows for universal applicationof certain rules.

• Customary international law can alsoserve to fill in the gaps where thetreaty law is insufficient or non-existent – as is the case with non-international armed conflict. Mostinternational humanitarian lawtreaty rules are considered as havingcustomary status.