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International Humanitarian Law and International Human Rights Law are so intertwined that it is quite essential to give a brief overview of their commonalities and differences so that one can distinguish the salient feature of each. What therefore becomes of much interest to us in this discussion is the question about how they differ since there are many things they share in common.

One of the major and important goals of the United Nations is the promotion of human rights and their observance by Member States. The Universal Declaration of Human Rights of 10 December 1948, the two International Covenants of 16 December 1966, one on Civil and Political rights, the other on Economic, Social and Cultural rights, and other treaties on specific aspects of human rights protection are the results to date of a major effort to strengthen the position of the individual in the face of State power.

Regional human rights agreements complete the picture of the efforts of affording safeguard to these fundamental rights. Human rights agreements and the relevant rules of customary law are also the ones intended to safeguard a series of individual rights from State abuse. The very important nature common to all those safeguards is that they are valid in all circumstances, at all times. Only in emergency situations and in strictly defined circumstances, known as situations of public emergency, do the different agreements allow for derogations from some of their provisions.

The treaties of humanitarian law, on the other hand, protect particularly vulnerable categories of persons from abuse of state power. Unlike human rights agreements which contain general rules applicable at all times, the protective rules and mechanisms of international humanitarian law are applicable only in time of war. That means, the application of international humanitarian law presupposes the occurrence of armed conflict and this makes its application to be limited to this exceptional circumstance. In this sense, it can be stated that international humanitarian law is that part of human rights law which is applicable in armed conflicts. In contrast, however, to the human rights or also referred to as named peacetime agreements, there can be no derogation under any circumstances from any of its provisions and will apply in almost all circumstances.

A further specificity of international humanitarian law is the fact that its provisions govern relations with the enemy. Members of the enemy armed inhabitants of a territory occupied by an enemy power are, for example, protected under the Fourth Geneva Convention, etc. Human rights agreements, however, affect above all the relationships between the authorities and citizens of the same State.

Owing to the fact that they are applied in different circumstances, international humanitarian law has not taken all the basic rights and freedoms guaranteed under human rights agreements and turned them into protective conditions in time of war. The protection of persons deprived of their liberty from torture and other inhuman treatment, for example, can be found in both branches of the law, for it constitutes an absolute right in the true sense of the words. International Humanitarian law does not, however, make provisions for the protection of the freedom of expression or movement, for example, since those freedoms have an entirely different meaning in a bellicose context. On the other hand, the treaties of humanitarian law contain sections which are foreign to human rights texts, such as the rules on the use of weapons.

Another possible difference is that international humanitarian law contains many more rules requiring the individual or the community to act than classic human rights law. This can be seen clearly in the 1864 Geneva Convention, Article 6, Paragraph 1 of which reads as follows: “Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for”. The law of Geneva presently in force contains a wealth of such directions for action although it cannot be said that the victim has a corresponding right to claim in court in the event of non-action.

International humanitarian law is often mentioned in the same breath as refugee law, the provisions of which apply whenever a person flees his homeland seeking protection in another country out of justified fear of persecution. Refugees exist in peacetime and in time of war. The Geneva Conventions contain some provisions which govern the specific situation of refugees in time of war but do not weaken the protection provided under refugee agreements. Moreover, refugees are entitled to the same protection under humanitarian law as other civilians affected by the consequences of hostilities.

Philosophers such as Grotius, took an interest in the regulation of conflicts well before the first Geneva Convention of 1864 was adopted and developed. In the 18th century, Jean-Jacques Rousseasu made a major contribution by formulating the basic principle about the development of war between states as:

War is in no way a relationship of man with man but a relationship between states, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to destroy the enemy state, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.

In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: (...) 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 the dictates of public conscience. This, also known as the Martens clause, was already considered a standard part of a customary law when it was incorporated in Article1, Paragraph 2, of Additional Protocol I of 1977.

 

While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of unnecessary suffering, as follows:

 Considering: (...) That the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men;

That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.

 

The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction: (...) 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. (Art. 48, Protocol I; see also Art. 1, Protocol II).

 

There are also established underlying principles of proportionality that seek to strike a balance between two diverging interests, one dictated by considerations of military need and the other by requirements of humanity when the rights or prohibitions are not absolute. Different writers follow different approach in describing these principles, and for the sake of making a brief explanation of the subject matter we have preferred the one that divides them into seven principles tin reviewing  the rules in the past and present.

The first rule is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction. The second fundamental rule provides that it is forbidden to kill or injure an enemy who surrenders or who is hors de combat .The third one is the wounded and seek shall be collected and cared for by the party to the conflict which has them in his power. Protection also covers medical personnel, establishments, transport and material. The emblem of the Red Cross (Red Crescent, Red lion and sun) is a sign of such protection and must be respected.

The fourth rule reads: Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief. And fifthly is provided that everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed.  No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

The sixth one states that parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering. The seventh and the last fundamental rule provides that Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.

The first and the main source of international humanitarian law is to be found in treaties. History tells that rules of International humanitarian Law, particularly rules on the treatment and exchange of prisoners and wounded, have since long been laid down in bilateral treaties. The systematic codification and progressive development of this branch in general multilateral treaty also started in the midst of the 19th century, which is relatively early as compared with other branches of international law.

A salient feature of the treaties of international humanitarian law is that most often a new set of treaties are supplemented or replaced with more details earlier ones after major wars taking into account new technological or military developments. Treaties of international humanitarian law have therefore been accused of being “one war behind reality”. This is however true for all law and it is only rarely has it been possible to regulate or even to outlaw a new means or method of warfare before it has been applied. 

Today, international humanitarian law is not only one of the most codified branches of international law but its relatively few instruments are also rather well coordinated with each other.

Of all the treaties signed so far, the four Geneva Conventions of 12 August 1949 for the protection of the victims of war are making up the main sources of international humanitarian law. The first of these conventions is Convention for the Ameliorations of the Conditions of the Wounded and sick in Armed Forces in the Field. The second Geneva Convention is Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; and the third one is Convention relative to the Treatment of Prisoners of War; and fourthly there is Convention relative to the Protection of Civilian Person in Time of War.

These four Geneva Conventions have also been supplemented with the two Additional Protocols of 8 June 1977. One of which, Protocol I, is Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts; and Protocol II is Protocol Additional to Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts.

These treaties have the great advantage of putting their rules relatively beyond doubt and controversy, “in black and white”, ready to be applied by a soldier without needing first to make a doctoral research on practice. They, furthermore, legitimize their rules for the majority of “new states” which are able to influence them in the elaboration process and which can more easily agree to be bound by them in their frequently voluntarist approach.

The disadvantages of these treaties, as of all treaty law, are that they are technically unable to have a general effect-automatically to bind all states. Fortunately, most of the treaties of international humanitarian law are considered today among the most universally accepted treaties and only few states are not bound. 

 

It has also been provided that however important the treaty rules of international humanitarian law may be even if they constitute obligations erga omnes, belong to jus cogens and if their respect is not subject to reciprocity- as treaty law they are only binding on states part to those treaties and, as far as international armed conflicts are concerned, only in their relation with other states parties to those treaties. The general law of treaties governs the conclusion, entry into force, reservations, application, interpretation, amendment, modification of international humanitarian law treaties and even their denunciation, which however, only takes effect after the end of an armed conflict in which the denunciating state is involved. The main exception to the general rules of the law of treaties for international humanitarian law treaty is provided by that same law of treaties; Once an international humanitarian law has become binding for a state, even a substantial breach of its provisions by another state, including by its enemy in an international armed conflict, does not permit the termination or suspension of the operation of that treaty as a consequence of that breach.

Although international humanitarian law is a branch widely codified in widely accepted multilateral conventions, customary rules remain important to protect victims on issues not covered by treaties, when non-parties to a treaty are involved in a conflict, where reservations have been made against the treaty rules and also because of the fact that international criminal tribunals prefer to apply customary rules, and because in some legal systems only customary rules are directly applicable in domestic law. Given the time consuming nature and other difficulties of treaty-making in an international society with more than 190 members and the rapidly evolving needs of war victims for protection against new technological and other inhumane phenomena, the importance of custom, redefined or not, may even increase in this field in the future. This, therefore, indicates the fact that customary law comes to be another source of international humanitarian law.

 

This, however, doesn’t mean that there aren’t any difficulties in defining a certain practice in terms of whether it is a customary rule or not. Those who follow a traditional theory of customary law and consider it to stem from the actual behavior of states in conformity with an alleged norm face particular difficulties in the field of international humanitarian law. First, for most rules this approach would limit practice to that of belligerents. And this comprises a few subjects whose practice is difficult to qualify as “general” and even more as “accepted as law.” Second, the actual practice of belligerents is difficult to identify, particularly as it often consists of omissions. There are also additional difficulties, e.g., war propaganda manipulates truth and secrecy makes it impossible to know which objectives were targeted and whether their destruction was deliberate. Finally, states are responsible for the behavior of individual soldiers even if the latter did not act in conformity with their instructions, but this does not imply that such behavior is also state practice constitutive of customary law. It is, therefore, particularly difficult to determine which acts of soldiers count as state practice. 

 

Other factors must, therefore, also be considered when assessing whether or not a rule belongs to customary law: whether qualified as practice lato sensu or as evidence for opinio iuris, statements of belligerents, including accusations against the enemy of violations of international humanitarian law and justifications for their own behavior.  

 

To identify “general” practice, statements of third states on the behavior of belligerents and on a claimed norm in diplomatic fora have to be similarly considered. Military manuals are even more important, because they contain instructions by states restraining their soldiers’ actions, which are somehow “statements against interest.” Too few States, generally Western States, have, however, sophisticated manuals available to the public to consider their contents as evidence for “general” practice in the contemporary international community.

 

It is also logically argued and even said to be totally uncontroversial that most, but clearly not all, rules of the two 1977 Additional Protocols today provide a formula for parallel rules of customary international law. Taking an overall view of all practice it can, for instance be found that a rule of the two 1977 Additional Protocols corresponds today to customary law binding on all states and belligerents, because it codified previously existing general international law, or because it translated a previously existing practice into a rule, because it combined, interpreted, or specified existing principles or rules, or because it concluded the development of a rule of customary international law or finally because it was a catalyst for the creation of a rule or of customary international law  through subsequent practice and multiple consent of states to be bound by the treaty.

 

Custom, however, has also very serious disadvantages as a source of international law. It is very difficult to base uniform application of the law, military instruction and the repression of breaches on custom which by definition is in constant evolution, is difficult to formulate, and is always subject to controversy. The codification of international humanitarian law began 150 years ago precisely because the international community found the actual practice of belligerents unacceptable, while custom is, despite all modern theories, also based on the actual practice of belligerents.   

The fundamental rule establishing the scope of application of international humanitarian law states that it is applicable in international armed conflicts. When there is an armed conflict, the international law of peace existing between the states concerned will largely be superseded by the rules of international humanitarian law. The international law of peace, however, will continue to be of great importance, particularly for the relationship between the parties to a conflict and neutral states.

If the application of international humanitarian law is dependent up on the existence of armed conflict, it becomes, therefore, essential to see what this phrase actually refers to. Traditional international law was based upon a rigid distinction between the state of peace and the state of war. Countries were judged as either in a state of peace or a state of war and there were no intermediate states, although there were cases in which it was difficult to tell whether the transition to a state of war has been made. So long as two countries were at peace, the law of peace – the normal rules of international law ---govern relations between them and if once they enter the state of war, the law of peace ceases to apply and their relations with one another become subject to the law of war, while their relations with other states not party to the dispute will be governed by the law of neutrality.

No such clear picture can be discovered today as since 1945, countries have rarely regarded themselves as being in a formal state of war. In response to this changing scenario, international humanitarian law now becomes applicable as soon as there is an international armed conflict without being subject to how the states party to the conflict define their status. There is also no sharp dichotomy between peace and armed conflict in international law such as used to exist between peace and war. A state of war usually presumed a complete a rupture of normal relation between the parties though today armed conflict between two countries does not necessarily mean that all non- hostile relations between them cease unlike what had been assumed widely in the past.  Today neither an armed conflict nor a formal state of war has such an effect. Thus, diplomatic relations between the parties will not necessarily be terminated or suspended because there is armed conflict between them.

Coming back to our main concern, it is now well established that the application of international humanitarian law is not dependent upon the existence of a formal state of war, or indeed upon the existence of what has sometimes been called ‘war in the factual sense’. The Geneva Conventions that provide the applicability of the rules of international humanitarian law as governed by Common Art. 2 Para. I, provide that the conventions apply to all cases of declared war or another armed conflict which may arise between two or more of High Contacting parties even if the state of war is not recognized by one of them. Although the final phrase does not deal expressly with the situation in which neither party to an armed conflict admits that it is in a state of war, it is generally believed that the Conventions were intended to apply in such a case, so that the last phrase should be read as if it said even if the state of war is not recognized by one or both of them. That is certainly the way in which it was interpreted in practice in most conflicts since 1949 as neither side has admitted that it was in a state of war, yet they have treated the Geneva Conventions as applicable. The Conventions are also applicable in a case where a sate declares war but does not engage in actual hostilities as was the case with some Latin American states during World War II.

The Hague Conventions of 1907 and a number of other earlier treaties on humanitarian law are stated to apply only in time of war. In practice, however, the rules which they contain are treated as applicable in an international armed conflict, whether or not that conflict is regarded by the parties as a war or not.

The Geneva Conventions do not define armed conflict and this omission was said to be apparently deliberate, since it was hoped that this term would continue to be purely factual and not become laden with legal technicalities. The ICRC Commentary on the Geneva Conventions takes a very broad view of what constitutes an armed conflict. It provides that any difference arising between two states and leading to the intervention of the members of the armed forces is an armed conflict even if one of the parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. It will generally be stated therefore that when fighting reaches a level of intensity which exceeds that of isolated clashes it will be treated as an armed conflict to which the rules of international humanitarian law apply. And that in any event, only the use of force by the organs of a state, rather than by private persons, will constitute an armed conflict.

Generally speaking, the application of international humanitarian law is not dependent on a formal declaration of war that nowadays occur only occasionally. It has already been noted that international humanitarian law now becomes applicable in any international armed conflict, whether or not a state of war exists between the parties. It follows that a declaration of war is not necessary for the application of humanitarian law. In fact, there are cases in which declaration of war have been delivered by one state to another through diplomatic channels as was done in World War I and II. But in most cases the parties to a conflict had denied that they were in a state of war. There have, however, been cases in which states have expressed the view, by means other than a formal declaration, that they regarded themselves as being at war. Thus, in both 1948 and 1967 a number of Arab states made explicit stamens to the effect that they were at war with Israel, and similar statements were made by Iran and Iraq during the 1980-88 Iran-Iraq War, as well as by Pakistan during its 1965 conflict with India.

 

 

It has also been established that it is irrelevant to the validity of international humanitarianly law whether the States and Governments involved in the conflict recognize each other as States. Because the applicability of the rules of international humanitarian law is not dependent upon whether the parties to a conflict recognize one another as states or not. Throughout the Arab-Israel conflict, for example, the Arab sates have not recognized Israel as a state; yet, both sides in that conflict have accepted the application of international humanitarian law. The question of whether the parties to an armed conflict are sates is said to be objective and not a matter to be determined by the subjective recognition policies of each party hence it is not important to determine the parties as states for the rules of international humanitarian law to apply

In addition, the application of humanitarian law in international armed conflicts does not depend on whether an armed conflict has been started in violation of a provision of international law, e.g. the prohibition against aggressive war. The victims of military aggression contrary to international law are also bound by the rules of international humanitarian law. Hence, the governing rule of international humanitarian law in this respect provides that it shall apply equally to all the parties to an armed conflict, irrespective of which state was responsible for starting the conflict and of whether that State was guilty of an act of aggression based on the rules of public international law.

Looking at the issue from a different perspective, there are cases in which the UN may resort to use force in its peace-keeping operations and other military operations. The issue that comes into picture in this case is whether this international humanitarian law shall be observed in peace keeping operations and other military operations of the United Nations or whether it is an exception. Although there was originally some doubt about the applicability of international humanitarian law to UN forces, it is now generally accepted that such  forces are subject to humanitarian law, whether they were established as peace-keeping forces or for the purpose of engaging in enforcement action. Thus, the Institute de droit international has confirmed that the humanitarian rules of the law of armed conflict apply to the United Nations as of rights and they must be complied with in every circumstance by United Nations forces which are engaged in hostilities. A second Institute resolution maintains that this obligation also extends to those rules of the law of armed conflict which are not of a specifically humanitarian character. Given that this is the case when the UN establishes a force of its own, it is clear that the rules of humanitarian law are applicable to a force under national control which operates with the authority of the Security Council.

There are cases in which the armed conflict remains non-international when there is no other state involved in the conflict. An armed conflict is said to be non-international if it is a confrontation between the existing governmental authority and groups of persons subordinate to this authority and is carried out by force of arms within national territory and reaches the magnitude of an armed riot or a civil war. Now, the question is whether the scope of application of international humanitarian law also encompasses this kind of conflict.

In non-international armed conflict, each party shall be bound to apply, as a minimum, the fundamental humanitarian provisions of international law embodied in the four 1949 Geneva Conventions, the 1954 Cultural Property Convention, and the 1977 Additional Protocol II. German soldiers, for example, like their Allies, are required to comply with the rules of international humanitarian law in the conduct of military operations in all armed conflicts. However, such conflicts are characterized, i.e. irrespective of whether that conflict is characterized as internal or international.

This rule setting for the application of international humanitarian law to non-international armed conflicts was only embodied in treaty form for the first time in the 1949 Geneva Conventions. Today, there are two instruments which expressly apply to non-international armed conflicts. Common Art. 3 of the Geneva Conventions contains a series of rudimentary provisions dealing with minimum rights and duties, such as the requirements that those hors de combat be treated humanely and that the wounded and sick be collected and cared for, and the prohibition against murder, torture, hostage taking, humiliating and degrading treatment, and the passing of sentences and carrying out of executions without a fair trial. AP II is a far more detailed code for application in internal armed conflicts.

 ICRC has provided a definition of humanitarian law in a more comprehensive manner enabling the reader to understand the scope of application of the law. It defines it as those international rules established by treaty of custom which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of the parties to a conflict to use methods and means of warfare of their choice or protect persons and property that are, or may be, affected by the conflict.

This definition, no doubt, requires some explanation. Therefore, we have to  discuss it in brief. The aim of international humanitarian law is to protect the human being and to safeguard the dignity of man in the extreme situation of war. The provisions of international humanitarian law have always been tailored to fit human requirements. They are bound to the aspiration of the protection of man from the consequences of brute force. The duty to respect the individual takes on special significance when the perpetrator of the violence is the State. Clearly, therefore, international humanitarian law is a part of that branch of international law safeguarding human rights from abuse by State power.

As is the case with every rule of law, the provisions of international humanitarian law are the result of a compromise, i.e. the weighing of conflicting interests. International humanitarian law must make allowance for the phenomenon of war and legitimate military goals. We call this the criterion of military necessity. On the other hand, the individual who does not or no longer participate in the hostilities must be protected as best as possible. The conflicting interests of military necessity and humanitarian considerations can be death within rules which limit the use of force in war but do not prohibit it when such use is legitimate. In this case, only international humanitarian law can do the best possible and can even set forth absolute prohibitions in the cases of, for example, torture  which is forbidden in all circumstances, without exception.

We can, therefore, infer that humanitarian law will only be endorsed by those responsible for using military force if it takes into account military considerations. In the real world, therefore, humanity must always take into consideration requirements of military necessity. In this, the law does not sanction the use of brute force; it reflects a desire to set realistic limits to the use of force which can be successfully applied. It is not the purpose of international humanitarian law to prohibit war or to adopt rules rendering war impossible. Rather, international humanitarian law must reckon with war, the better to keep the effects thereof within the boundaries of absolute military necessity.

Throughout history, whenever states and/or peoples have taken up arms, they have asserted that they were doing so for a just cause. All too often this argument has been used to justify refusing their opponents any mercy. In fact, history shows that the more the belligerents insist on the sanctity of their reasons for resorting to armed force, the more those same reasons are used to justify the worst excesses. The crusades and the wars of religion, alas, left a long trial of atrocities in their wake.

 

It was only when war was recognized as a very imperfect means of settling a dispute between two sovereigns that states began to accept the idea of limiting armed violence. The emergence of nation states and the development of professional armies led states to gradually accept a body of rules intended to limit the horrors of war and to protect its victims. For a long time, these rules remained customary in nature; they began to be codified in the mid-Nineteenth Century.

International Humanitarian Law developed at a time when the use of force was a lawful form of international relations, when states were not prohibited to wage war, when they had the right to make war, meaning, when they had the Jus ad bellum. There was no logical problem for international law to prescribe them the respect of certain rules of behavior in war called the jus in bello if they resorted to that means.

Today the use of force between states is prohibited by a peremptory rule of international law. This has made the jus ad bellum to change into a jus contra bellum. Exceptions to this prohibition are admitted in case of individual and collective self-defense, Security Council enforcement measures, and arguably to enforce the right of peoples to self-determination or national liberation wars. Logically, at least one side of an international armed conflict is, therefore, violating international law by the sole fact of using force, however respectful of IHL. All municipal laws of the world equally prohibit the use of force against governmental law enforcement agencies in the case of non-international armed conflict.

Although armed conflicts are prohibited, they happen, and it is today recognized that international law has to address this reality of international life not only by combating the phenomenon, but also by regulating it to ensure a minimum of humanity in this inhumane and illegal situation. However, for practical, policy, and humanitarian reasons, international humanitarian law has to be the same for both belligerents: the one resorting lawfully to force and the one resorting unlawfully to force. From a practical point of view, the respect of international humanitarian law could otherwise not be obtained, as, at least between the belligerents, it is always controversial as to which belligerent is resorting to force in conformity with the jus ad bellum and which violates the jus contra bellum. In addition, from a humanitarian point of view, the victims of the conflict on both sides need the same protection, and they are not necessarily responsible for the violation of the jus ad bellum committed by “their” party.

International Humanitarian Law has, therefore, to be respected independently of any argument of jus ad bellum and has to be completely distinguished from jus ad bellum. Any past, present, and future theory of just war only concern jus ad bellum and cannot justify that those fighting a just war have more rights or less obligations under international humanitarian law than those fighting an unjust war.

 

This complete separation between jus ad bellum and jus in bello has been recognized in the preamble of protocol I which reads:

“The High Contracting Parties,

 Proclaiming their earnest wish to see peace prevail among          

peoples, Recalling that every state has the duty, in conformity with the charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations

Believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application,

   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 inconsistent with the charter of the United Nations,

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 conflict. (...)”

 

This complete separation between jus ad bellum and jus in bello implies that international humanitarian law applies whenever there is de facto armed conflict, however that conflict can be qualified under jus ad bellum, and that no jus ad bellum arguments may be used in interpreting international humanitarian law. It also, however, implies, for the drafting of rules of international humanitarian law, that they may not render the Jus ad bellum impossible to be implemented, e.g., render efficient self-defense impossible. 

There are also some writers who do not confine themselves to just showing the distinction between jus ad bellum and jus in bello and who go further and even assert the autonomy of jus in bello with regard to jus ad bellum. Under the terms of the Pact of Paris, the contracting states declared that they condemned ‘recourse to war for the solution of international controversies’, and renounced it ‘as an instrument of national policy’. As has been noted herein above the United Nations Charter has prohibited any recourse to force in international relations with few exceptions.

 

That being the case, the following question arises: Is the fact that a belligerent has resorted to armed force in violation of international treaties and commitments an obstacle to the application of jus in bello? Two possibilities may be envisaged:

    I)  Either the war of aggression is deemed to be the international crime par excellence, a crime which subsumes all others and which therefore cannot be regulated, in which case the laws and customs of war do not apply to either of the belligerents; or

    II)  The aggressor alone is deprived of the rights conferred by jus in bello, whereas all his obligations under this law remain unchanged, while the state which is the victim of the aggression continues to enjoy all the rights conferred by jus in bello without incurring any obligations.

 

The first hypothesis is only one that draws all the logical conclusions from any subordination of jus in bello to jus ad bellum. It must nevertheless, be rejected out of hand, for it would lead to unbridled violence. The consequence of an abdication of the rule or law, that solution would produce absurd and monstrous result.

 

The second solution entails a differentiated application of the laws and customs of war, but it must be rejected just as vigorously as the first, for in practice it would produce the same result. In the absence of a mechanism to determine aggression and to designate the aggressor in every case and in such a way as to be binding equally all belligerents, each of the latter would claim to be the victim of aggression and take advantage of this to deny his adversary the benefits afforded by the laws and customs of war. In practice, therefore, this solution would lead to the same result as the hypothesis whereby wars of aggression cannot be regulated: a surge of unchecked violence. The autonomy of jus in bello with regard to jus ad bellum must therefore be preserved. This conclusion had already been clearly demonstrated by Emer de Vattel (1714-1767):  

 

            War cannot be just on both sides: One party claims a right, the other disputes the justice of the claim; one complains of an injury, the other denies having done it. When two persons dispute over the truth of a proposition it is impossible that the two contrary opinions should be at the same time true. However, it can happen that the contending parties are both in good faith; and in a doubtful cause it is, moreover, uncertain which side is in the right. Since, therefore, Nations are equal and independent, and can not set themselves up as judges over one another, it follows that in all cases open to doubt the war carried on by both parties must be regarded as equally lawful, at least as regards its exterior effects and until the cause is decided.

 

Thus, Vattel does not expressly reject the doctrine of just war, developed by the fathers of the Church, but puts it into perspective and draws its sting.

 

The autonomy of jus in bello with regard to jus ad bellum was confirmed after the Second World War by the Charter of Nuremberg Tribunal, which made a distinction between war crimes, that is, acts committed in violation of the laws and customs of war, and crimes against peace. This distinction was confirmed by the practice of the Tribunal. Indeed, the Tribunal scrupulously respected the distinction between crimes against peace, on the one hand, and war crimes, on the other; it assessed the intrinsic unlawfulness of war crimes against the laws and customs of war, regardless of the fact that the crimes concerned had been committed during a war of aggression. By acknowledging that the laws and customs of war could be invoked not only by the prosecution but also by the defense for the accused, the Tribunal unequivocally confirmed the autonomy of jus in bello with regard to jus ad bellum. The great majority of national tribunals entrusted with the task of judging war crimes committed during the Second World War upheld this distinction.

 

The Geneva Conventions of 12 August 1949 doubly confirmed the autonomy of jus ad bellum. First, in Article 1 common to the four Conventions, the High Contracting parties undertake to respect and ensure respect for these instruments ‘in all circumstance.’ There can be no doubt that in adopting this provision states ruled out the possibility of invoking arguments based on the legality of the use of force in order to be released from their obligations under the Conventions.

Secondly, the Conventions prohibit any reprisals against persons or property protected by their provisions. Obviously, any state using the argument that it is the victim of a war of aggression to justify its refusal to apply humanitarian law to enemy nationals would be in violation of this prohibition.

 

Finally, the preamble to Protocol I additional to the Geneva Conventions, adopted by consensus on 7 June 1977, put an end to all argument on the matter by a pointing out 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 conflict.

The principle of the equality of belligerents before the law of war, which is in a way the corollary of the autonomy of jus in bello with regard to jus ad bellum, is thus firmly rooted in both treaty law and state practice.

 

This principle dominates the entire body of the laws and customs of war. It finds its main application, however, in the status of prisoners of war as it took shape in Europe from the Seventeenth Century. The decision to make war was the responsibility of the sovereign alone; the soldier who was in the sovereign’s service could not be held responsible for his participation in the hostilities. Hence, captivity in a war situation was no longer seen as a dishonor or a punishment but as a security measure whereby the captor prevented enemy against him. When peace was restored, prisoners of war had to be freed, regardless of their number or rank and without any ransom being demanded. This was the rule laid down by Article LXIII of the Treaty of Munster of 30 January 1648, which put an end to the Thirty Years War. ‘All Prisoners of War shall be released on both sides, without payment of any ransom, without distinction and without exception...’  

 

If the application of the principle of the equality of belligerents before the law of war raises major difficulties in situations of international armed conflict, it may well be imagined that even more formidable obstacles lie in its way in situations of non-international armed conflict. Indeed, a state facing an insurrection will almost invariably begin by invoking a dual inequality: On the one hand, the state will accuse the insurgents of having violated national law and endeavour to bring the full force of the criminal law to bear against them; while claiming to be fully within its rights, it will do everything it can to criminalize its adversaries; On the other hand, the state will rely on the inequality of the insurgents’ legal status under domestic law and, in most cases, under international law, to justify rejecting any relationship with them based on an equal footing.

 

This clearly indicates the case where by the autonomy of jus in bello with regard to jus ad bellum and the principle of the equality of belligerents before the law of war meet with particular obstacles in situations of non-international armed conflict. 

In dealing with the concept of international humanitarian law, it was stated that it is principally concerned with limiting the effects of armed conflict. From a historical and philosophical perspective also there are many scholars who have dedicated their time and efforts to trace the very incident that gave rise to the idea of controlling war. One of the most notable ones is Clausewitz, who was once a practical soldier and politician and whose works will be considered briefly herein below.

The idea of controlling of war is said to be as old as war itself. Clausewitz, when addressing the very concept of war itself, is said to have spoken with two voices: on the one hand, stigmatizing the notion of controlling war as leading to ‘logical absurdity’; on the other, actually writing about the conduct of war as if it were susceptible to control. All best contemporary commentators on Clausewitz –Aron, Galline, Paret, and  Howard himself-find it possible to explain the two voices as echoes of an ambiguous belief that war, although peculiarly difficult to control, was in principle controllable and that in many circumstances it could be controlled. The ancient idea could retain credibility because circumstances continued to support it, and so long as that was the case Clausewitz could justifiably retain his preeminence as the arch-philosopher of war. But, what if circumstances should have changed to an extent that makes the idea, at least in part, incredible? Howard, another notable writer on the control of war, himself goes on to acknowledge that post-1945 circumstances have done precisely that war is not so much the continuation of politics, but their bankruptcy.

Ambiguity and contradiction are not singular to Clausewitz, . They mark in general the whole of Europe-based philosophy of war, which is founded in the reconciliation of the principles of military necessity and humanitarian concern. Its story can be read as the record of a never-ending dialectic between an idea, which is, of course, full of contradictions, and circumstances (cultural, ideological, political, or whatever) which are sometimes conductive to it but sometimes so discouraging. And yet, they all have never despaired altogether any more than believing men have ever, even in darkest times, abandoned the hope of salvation. The idea of controlling and restraining war has survived and is alive and well in the world today. It even goes back time out of mind and is said to be even as old as war itself. Consequently, killing became differentiated, and one kind was called murder; war was perfected though it could bring an uneasy conscience. The will to brotherhood and harmony also existed but was at odds with the will to competitiveness and aggression.

Scholars narrate the historical development of international humanitarian law by dividing it into different stages. The first stage is given a name 'early plan for peaceful order'. Abhorrence of war and with it the making of plans for its abolition, prevention, or limitation is said to be an old-age aspect of man’s confused and ambivalent thinking about war; an aspect which for the most part fitted snugly within those streams of religious and political thoughts classified under the heads of utopias, pacifism, and the perfectibility of man. Indeed, it must be admitted that a particular European sub-set of plans for the establishment of a peaceful international order from Dante and Marsilius of Padua through Dubois, Cruce, Sully, Penn, Saint-Pierre, and Rousseau to Kant have often been and still often are presented as heartening precedents of some particular value, demonstrating that the twentieth century’s endeavors in this direction have more solid foundations than simply utopian aspiration. 

From all those earlier centuries of thought and planning about the control of war, there is  an important and unbroken stream whose relevance to practicability was never doubted and whose particular and unique idea was rooted in circumstances where it directly made sense: the idea of restraint and self-respect in the conduct of war. These ideas have turned up in most civilizations and societies gradually.

The second period in war controlling endeavor is the one that covers the years from the second half of the 19th and early 20th century. In this period, this optimistic reading of war achieved very wide acceptance. At the same time, the development of international organization and of public international law were being read as elements of that overall progress in condition of mankind which the majority of inhabitants of the imperial powers took for granted. And the realm of war was one of those over which progress was believed to and women active in various branches of the Peace Movement showed progress in the laying of foundations for demilitarization, disarmament, and the non-violent resolution of inter-state conflicts. For men untouched by the peace Movement and wedded still to the cult of war, showed progress in the applications of science and industry which might make wars more intense and lethal but would, they believed, make them decisive and short. This can be easily noticed from the maxim dear to such war saying ‘short and sharp wars are the most humane’. For people in between, to whom the peace people appeared impractical and the War people insensitive, progress showed most persuasively in the development of international law and ‘the public conscience’; a law and an ethic which would work together to impose humanitarian restraints and prohibitions on the conduct of war and to keep it as it is supposed to be relatively better.

So much of a war-controlling kind was proposed to be done in this historical period, and enough actually was said to have been done, for the record of those years to serve as a kind of compendium of ideas and illustrations covering all branches of our subject matter, i.e. humanitarian restraint. Obviously, the ideas for the most part were far from new but they were activated now in circumstances sufficiently like those of our own times to justify our regarding them as a stepping stone for what was to come later.

The next important event in the history of international humanitarian law is disarmament or as defined by the scholars ‘arms control’ movement. This, broadly understood, was said to be one of the principal war controlling endeavors of the 19th century. Among the most significant ones, disarmament proposals of one sort or another were put forward by Russia in 1816, 1859; and 1899; by France in 1863 and 1877; Britain in 1866, 1870, and 1890; Denmark in 1893. It has also been said that nothing like them had been herd of before. But to ones dismay, none of them got anywhere. Each of course has its own particular explanation and is grounded in the political circumstance of the time and the proposers’ sense of occasion. One may, however, dare to offer some general explanations without greatly endangering historical truth.

 The spirit of this particular period was receptive to such schemes and not through the medium of public opinion alone. Some of those schemes were floated in the normal confidentiality of top-level diplomatic discourse; whatever interests the proposers had at heart, they did not always include mass popularity or the satisfaction of pressure groups. Something in the spirit of the age was encouraging to the idea of disarmament. Besides the rampant nationalism and imperialism and pure Biblicism which excited the minds of men from the cottage to the throne, there were also certain preferences for peace and revulsions from war.

Disarmament had other attractions of a more prudential and self serving nature too. Armaments and armed forces cost money. Wars that paid for themselves had always been exceptional. By the late nineteenth century, the costs of military preparedness were becoming fearsome, and part of the public mind was interested in reducing them. Except the German government of 1899 which denied that fact and proclaimed saying their people were perfectly happy to pay for all the armaments, every government admitted that they felt the pressures of military expenditure and were aspiring the pleasure of release from them.

Alexander, who was mindful of all the problems of the time relating to disarmament, in 1816 proposed a great idea of ‘a simultaneous reduction in the armed forces of all kinds, which the powers have brought into being to preserve the safety and independence of their peoples’. Though this is said to be a wonderful proposal it was weakened by the reluctance of countries especially Russia that had not, since the return of peace, reduced their forces.

Another principal war-controlling endeavor of the nineteenth century other than disarmament, was arbitration although it was admittedly said to be stretching things a bit to include among ways of controlling war a way of avoiding it. Some elements of the peace movement favored one, some the another, but almost always, i.e. disarmament and arbitration go, hand in hand in that the former strives to reduce the ability to fight wars and to remove the pressures and inducements thereto; and the latter, to resolve international conflict by peaceful and rational means instead of by violent and uncontrollable means. Like disarmament, the idea of arbitration could be traced back ever so far to the years before Christ. Unlike disarmament, it could, however, boast of a respectable history of modest practical achievements through many ages and phases of civilization. As the well-known historian Fried, cited these impressive figures cover from 1844 to 1860, 25 arbitration treaties; 1861 to 1880, 54, 1881 to 1900, 111. In all, 212 arbitral awards made in the course of the century, and all of them, he claimed, ‘carried out in good faith’. After 1900, the rage for arbitration only grew fiercer in the heydays of The Hague and Geneva.

But from our point of view, as from that of any serious historian of international relations, all those figures of treaties, awards and settlements add up to very little because it was either the settlement of disputes between small states, often under the admonitory eye of a regional hegemonies as was especially likely to be the case among Members of the Pan-American Union; or the only few cases which catch a realist’s eye, disputes which great powers could have got heated about but which one or another of the parties decided to cool down.

Disarmament and arbitration were both major preoccupations of The Hague Conferences of 1899 and 1907.  It is also equally important and necessary to wheel back fifty years and say few words on the other half of the war-controlling story which also proved to be big at The Hague the laws and customs of war. These had origins as ancient and basic as the ideas of disarmament, arbitration, and so on, and over the ages achieved a firmer foothold than them in the war practices of mankind. This had not been done without sacrifices. In its historic origins, the law of war meant what law had to say about going to war in the first place as well as what it said about how to conduct a war once you were in it.

The other very important events in the history of international humanitarian law are the two Conferences held at The Hague in 1899 and 1907. Both Conferences were known as pace Conferences but it was only the 1899 one that grappled with the roots of the problem, so far as that was one of armaments, armed strengths, and an arms race running beyond control. Disarmament had a much more tenuous place on the agenda for 1907, where it was only briefly touched upon. In 1899, it was the heart of the matter, a strident call on the diplomatic resourcefulness of the participants and source of excitement to the peace movement’s observers, a vocal vanguard of whom moved into the city for the Conference’s duration, rejoicing to regard it as ‘the parliament of peace’. With their relentless lobbying and acclamation as an ever-present reminder of the interest the self-styled civilized world was focusing upon, the delegates in charge of negotiating had to move cautiously.

But for those who watched what they did rather than what they said, the direction of their movement was never in doubt; it was towards rejection of every disarmament proposal that did not promise to leave their own countries in a relatively improved position vis-a- vis the rest; which meant, of course, that since every country hoped that others would be as slow to notice its own self-interest as it was quick to notice the self-interest of others, no progress was made towards disarmament at all. The conference ended with no more than this uncontroversial declaration that ‘the limitation of military expenses, which presently weigh heavy on the world, is much to be desired for the sake of both material and moral development of humankind’ .

Though the entire endeavor to realize the taking of practical steps towards disarmament in the conference couldn’t be successful, the Hague Peace Conferences are not to be sneered at because they made the first steps down many war-controlling roads which are still being traveled on in our own times. Some of the thirteen Conventions instituted in 1907 also remain basic to our contemporary law of war, peace, and neutrality. On the other hand, the Land War Regulations together with their updating of the Geneva Conventions, were a landmark of humanitarian law. But the Conferences’ failure was almost complete in respect of their announced purposes of disarmament and arms control.

 

The next important event that comes into picture in the history of international humanitarian law is the post-world war II circumstance. The UN is a post-1945 circumstance which makes a big mark. Its predecessor, the League of Nations, also made a mark for a few years but it did not last. The control of war by one means or another was the League’s raison d’etre, and the more that raison d’etre was frustrated, the lower the League sank towards its tragic and humiliating grave. The case of the UN is quite different. Disarmament, not initially one of its main purposes, early becomes one in proportion with the evaporation of optimism as to its peace-keeping capabilities. Because too much was not hoped for too long, failure to achieve much in the war-controlling line has not been too disappointing. But apart from that, the UN just simply is there and is in many ways useful. It is the world’s central mart and exchange for the transaction of much international business. It has sunk roots, as the League never did. Although one might argue that endless talk cannot actually do much good for arms control and other means of controlling war, one can just as well argue that the important issues are better talked about too much than not talked about at all.

Not so much may be new since the World War II, as we supposed. What is unquestionably new since then, however, is the question of nuclear weapons. But there are limits to the newness of the terms of the debate which we conduct about them. What States can do with nuclear weapons is no doubt, new; but deciding whether to do it or not invokes no new ideas, runs into no new difficulty unless it relates to a raising of the alleged primacy of scientific and technical factors to a new height. 

The law of war has since then, between 1945 and 1980, gone through a second phase of ‘reaffirmation and development’; and it is much more concerned than it had ever been before with the protection of ‘civilians’.

That, in deed might be thought to have become its main business-reasonably enough, considering how the ration of civilian to military losses has risen in the wars of our century, and how frightful civilian sufferings often are-and that must be its chief attraction to the civilian mind. It offers-within the legal meaning of the technical term, ‘protection’ which is likely to encourage the civilian to think he can be protected from the horrors of war and to feel indignant when he is not.

Generally speaking, in the history of international humanitarian law, powerful lords and religious figures, wise men and warlords from all continents have since time immemorial attempted to limit the consequences of war by means of generally binding rules. But, it would make our discussion of the history of international humanitarian law incomplete if we don’t see what Henry Dunant and Francis Lieber have done for today’s universal and for the most part written international humanitarian law in the 19th century in Europe. Both of whom were marked by a traumatic experience of war and at almost the same time, but apparently without knowing of each other’s existence, made essential contributions to the concept and contents of contemporary international humanitarian law. The important contribution of these two figures is not of course inventing protection for the victims of war, rather they are known for expressing an old idea in the form adapted to the contemporary world.

Dunant and Lieber both built on an idea which is a pillar to the basic rules of humanitarian law based on what is put forward by Jean-Jacques Rousseau in The Social Contract, which appeared in 1762. The idea used as a basis for the rules on humanitarian law is that “War is in no way a relationship of man with man but a relationship between States, in which individuals are only enemies by accident, not as men, but as soldiers…”  Rousseau continued, logically, that soldiers may only be fought as long as they themselves are fighting. Once they lay down their weapons , “they again become mere men” and hence their lives must be spared. Rousseau in this statement, thus, summed up the basic principle underlying international humanitarian law, i.e. that the purpose of a bellicose attack may never be to destroy the enemy physically. In so doing he lays the foundations for the distinction to be made between members of a fighting force, the combatants, on the one hand, and the remaining citizens of an enemy State, the civilians not participating in the conflict, on the other.

The use of force is permitted only against the combatants, since the purpose of war is to overcome enemy armed forces, not to destroy an enemy nation. And hence force may be used against individual soldiers only so long as they put up resistance. Any soldier laying down his arms or obliged to do so because of injury is no longer an enemy and may, therefore, no longer be the target of a military operation. It is in any case pointless to take revenge on a simple soldier, as he cannot be held personally responsible for the conflict.

Henry Dunanat, who is said to have built the intellectual foundation for the rebirth of international humanitarian law in the 19th century, has also made a notable contribution through his book ‘A Memory of Solferino’. In this writing, he did not dwell so much on the fact that wounded soldiers were mistreated or defenseless people killed. He was deeply shocked by the absence of any form of help for the wounded and dying. He, therefore, proposed two practical measures calling for direct action: an international agreement on the neutralization of medical personnel in the field, and the creation of a permanent organization for practical assistance to the war wounded. The first led to the adoption in 1864 of the initial Geneva Convention whereas the second saw the founding of the Red Cross.

This material was revised in 1906 on the recommendation of the ICRC and on the basis of the experience of several wars. The First World War was a serious test for the law of Geneva, and resulted in a further revision in a serious test for the law of Geneva, and resulted in a further revision in 1929. Four years after the end of the Second World War, on 12 August 1949, the first Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted..

A Convention adopted at the 1899 Hague Peace Conference placed the victims of war at sea under the protection of the law of Geneva. A revised version of the Convention was adopted at the 1907 Hague Peace Conference, and later became the present or the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of armed Forces at Sea

The Hague peace conference also examined another topic on the treatment of the prisoners of war. The 1899 and 1907 Conventions on the Laws and Customs of War on Land contained some provisions on the treatment of prisoners. On the basis of the experience of the First World War, one of the two 1929 Geneva Conventions consisted in fact in a Prisoner-of-War Code, which in turn was also developed after the Second World War. The (Third) Geneva Convention relative to the Treatment of Prisoners of War (of 12 August 1949) remains in force to this day. In addition, there is a fourth Geneva convention and two additional protocols known as protocols additional to the Geneva conventions as the instruments setting down the rules of contemporary international humanitarian law