Humanitarian Law

Case: Hungary v. Slovakia, 1997, ICJ

In 1978 Hungary and Chekoslovokia signed the Danube treaty to build a dam jointly over river
Danube, the construction of the dam then began. In 1989, Hungary wanted to revoke the terms
and conditions of the treaty because of environmental concerns, lack of funding and also called
fundamental change of circumstances. In 1993, the new nation of Slovakia started to negotiate
with the Hungarian government and decided jointly to take the matter to the ICJ.

ICJ prima facie held that Hungary was liable on all the ground for not respecting the doctrine
of pacta sunt servanda (agreement must be kept), and other treaty violations as contained in the
Danube treaty. ICJ also found Slovakia guilty on one count. The court also held Slovakia liable
for one ground, and it was the 1st in which the judges of ICJ actually want a spot to determine
the environmental repercussions of the construction of the dam.

 International humanitarian law applies to armed conflicts (Jus in bello).

 It does not regulate whether a State may actually use force (Jus ad bellum);
Proportionality: The ratio of the conflicting parties must be proportionally legitimate. There
cannot be mass exploitation by a superior state to that of a militarily weak one. This keeps the
war from its barbaric nature, keeping humanity in mind. There should be tempering down of
limitless use of force.

The Challenges faced while implementing International

Humanitarian Law
 On defining Humanity:

The law is just one among numerous tools used to standardize human behavior and no branch of
law, whether international or domestic, can on its own, be expected to completely regulate a
phenomenon as multifaceted as violence. The criticism usually given here is that what one can
define as humanity is not fixed. Humanity in itself is a contested concept. No matter the amount
of effort that I.H.L puts in to define it- can do so. Since there is no standardized definition- each
manipulates it to their own use and hence I.H.L. loses the respect it so often deserves for its
efforts.(whether rewarding or futile).Measures need to be taken to ensure respect for
international humanitarian law so that there is a standardization of the law and acceptance of it. It
must command and not hence, demand for the actions that it needs to take at times of armed
conflict. International Humanitarian Law needs to be accepted as the universal body of law. And
its universal application needs to be accepted and not questioned. This is one factor that I.HL
faces while entering a conflict – that of its legitimacy.

 I.H.L and the State:

In the first place itself, there has to be compliance of the state for these rules and regulations. The
lack of it creates a problem in implementing the law. While IHL aims to circumscribe certain
behavior in armed conflict, there will always be States, non State armed groups and individuals
who will not be deterred from violating the rules, regardless of the penalty. If relied on as the
sole tool for eliminating or reducing violence, it must be understood to have limits involved.
States have an obligation to teach its rules to their armed forces and the general public. They
must prevent violations or punish them if these nevertheless occur, which rarely happens. In
particular, they must enact laws to punish the most serious violations of the Geneva Conventions
and Additional Protocols, which are regarded as war crimes. Co-operation amongst the states is
another hurdle in the implementation of the I.H.L. Time and again there are acts of violence
which are transnational in character. Implementation of I.H.L then becomes a more complex task
because with the involvement of more actors and institutions, there are more clauses, if’s and
but’s which need to be taken care of.

 Funds:

Another problem in the implementation of I.H.L is as to how it is funded and who funds. Also
the political influence of that funding.

 Conflicting interests:
Lastly there is an internal problem as to how to enter about an armed conflict and the decision
taking of what is to be done and how to go about it. Political, economic, societal, cultural and
other factors that influence human conduct just as decisively must also be taken into account
when contemplating comprehensive solutions to any form of violence.