University of Kashmir

(Department of Law)
Srinagar, J&K 190006

Prepared By:- Sheikh Mohsin

Batch: BA-LLB 2017-2023

Subject:-Human Rights, Humanitarian Law &

Refugee Law

Semester:-BA LLB 10th

Unit 5:-
1. International Humanitarian Law
a) Definition, Origin and Development
b) Protection of Defenceless in war
c) Limitation on methods and use of force during armed conflicts
contemporary issues and challenges

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 1. International Humanitarian Law
Introduction
International Humanitarian Law (IHL), also known as the law of war or the law of armed conflict, is a set of rules and
principles that governs the conduct of armed conflict and seeks to protect people who are not or are no longer taking
part in the hostilities. The purpose of IHL is to limit the effects of armed conflict and to protect those who are not or
are no longer taking part in the hostilities, such as civilians, prisoners of war, and the sick and wounded.

IHL is a branch of international law that has developed over the past century in response to the devastating effects
of armed conflicts on civilians and combatants. It is based on two main bodies of law: the Geneva Conventions of
1949 and their Additional Protocols of 1977, and the Hague Conventions of 1899 and 1907. These treaties establish
the legal framework for the conduct of armed conflicts and provide rules for the protection of those who are not or
are no longer taking part in the hostilities.

IHL applies to all parties to an armed conflict, whether they are states, non-state actors, or international organizations.
It governs the conduct of hostilities, the treatment of prisoners of war and civilians, and the protection of cultural
property and the environment during armed conflicts.

IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and
assisting all victims of armed conflict to the greatest extent possible.

Jus in bello
Jus in bello, also known as the law of war or international humanitarian law, refers to the body of legal principles and
rules that regulate the conduct of armed conflicts. Its purpose is to mitigate the effects of war and protect individuals
who are not, or are no longer, taking part in hostilities. Jus in bello is based on the principles of humanity, military
necessity, proportionality and Distinction.

Here are the details of every principle of Jus in bello:

1. Principle of Humanity/Unnecessary Suffering

The principle of humanity is also known as the principle of unnecessary suffering. This principle prohibits the use of
weapons, methods, and tactics that are likely to cause unnecessary suffering or harm to individuals during an armed
conflict. This principle is based on the idea that combatants should treat their enemies humanely and avoid causing
undue harm.

The principle of humanity also requires combatants to use only those methods and means of warfare that are
necessary to achieve their military objectives. The principle of humanity is closely linked to the concept of
"humanitarianism", which emphasizes the need to protect and assist vulnerable individuals during armed conflicts.
It requires combatants to distinguish between military targets and civilian objects, and to take all feasible precautions
to minimize harm to civilians and civilian objects. This includes the obligation to respect and protect medical
personnel and facilities, as well as wounded, sick, and shipwrecked individuals who are no longer taking part in
hostilities.

2. Principle of Military Necessity

The principle of military necessity allows for the use of force to achieve legitimate military objectives. However, it
requires combatants to use only that force that is necessary and proportionate to achieve their military objectives.
This principle is based on the idea that combatants have a duty to use force in a way that minimizes harm to
individuals and to avoid using force for purely punitive purposes.

Under this principle, combatants must use the least harmful means possible to achieve their military objectives. They
must avoid causing harm to civilians and civilian objects whenever possible and should only use force that is necessary
to achieve their objectives.

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 3. Principle of Proportionality

The principle of proportionality requires that the harm caused by an attack must not be excessive in relation to the
military advantage anticipated. In other words, the expected military benefit of an attack must be weighed against
the potential harm to civilians and civilian objects.

This principle requires combatants to consider the potential harm to civilians and civilian objects before carrying out
an attack. They must weigh the expected military benefit of the attack against the potential harm to civilians and
civilian objects. If the potential harm to civilians and civilian objects outweighs the expected military benefit, the
attack is prohibited under the principle of proportionality.

4. Principle of Distinction

The principle of distinction requires that parties to a conflict must distinguish between civilians and combatants and
that attacks may only be directed against military objectives. Civilians and civilian objects are protected from attack
and must not be targeted.

This principle is based on the idea that civilians and civilian objects should be protected from the harmful effects of
armed conflict. Combatants must distinguish between civilians and combatants and should only attack military
targets. They must take all feasible precautions to avoid or minimize harm to civilians and civilian objects.

Overall, these principles provide a framework for the conduct of hostilities that is intended to reduce unnecessary
suffering and prevent unnecessary harm to civilians and civilian objects. By following these principles, combatants
can minimize the impact of armed conflict on civilians and civilian objects while still achieving their military objectives.

Jus in bello is governed by a number of international treaties and customary international law. The most important
of these are the four Geneva Conventions of 1949 and their Additional Protocols of 1977. These conventions establish
the basic rules for the protection of victims of armed conflicts, including wounded and sick combatants, prisoners of
war, and civilians. The conventions also set out rules on the conduct of hostilities, including the prohibition of certain
weapons and tactics, such as indiscriminate attacks and attacks on civilians.

Other international treaties, such as the Convention on Certain Conventional Weapons and the Convention on the
Prohibition of Chemical Weapons, regulate the use of specific weapons in armed conflicts. In addition, customary
international law, which is formed by the consistent and general practice of states, also plays an important role in
the development of jus in bello.

The development of jus in bello has been influenced by a number of factors, including changes in the nature of armed
conflicts, the development of new weapons technologies, and the increased awareness of the rights of individuals in
armed conflicts. One of the most significant developments in recent years has been the recognition of the
responsibility of states and individuals for war crimes, which has led to the establishment of international criminal
tribunals to prosecute individuals for violations of jus in bello.

Overall, jus in bello plays a crucial role in mitigating the effects of armed conflicts and protecting the rights of
individuals in times of war. Its principles and rules reflect the fundamental values of humanity and respect for human
dignity, and serve as an important reminder that even in times of war, the basic rights of individuals must be
respected and protected.

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 a) Definition, Origin and Development
Definition

International Humanitarian Law (IHL), also known as the laws of war or the law of armed conflict, is a set of rules and
principles that regulate the conduct of armed conflicts and seek to limit their effects.

Origin

The origins of IHL can be traced back to ancient civilizations, where there were some rudimentary rules of conduct
during wars. However, the modern concept of IHL began to emerge in the 19th century with the development of the
first international treaties on the laws of war.

The first major treaty on the laws of war was the Lieber Code, which was issued by the Union Army during the
American Civil War in 1863. The Lieber Code was the first attempt to codify the laws of war and establish rules for
the conduct of hostilities. It contained provisions on the treatment of prisoners of war, the protection of civilians and
their property, and the prohibition of certain methods of warfare.

Development

The next major development in the history of IHL was the Hague Conventions of 1899 and 1907. The Hague
Conventions were a series of international treaties that sought to codify the laws of war and establish rules for the
conduct of hostilities. They established rules for the treatment of prisoners of war, the protection of civilians and
their property, and the prohibition of certain methods of warfare. The Hague Conventions also established the
Permanent Court of Arbitration, which is still in existence today.

The modern concept of IHL was largely shaped by the two World Wars, which resulted in the deaths of millions of
people, including civilians. The atrocities committed during these wars led to the development of new international
treaties on the laws of war, such as the Geneva Conventions of 1949 and their Additional Protocols of 1977. These
treaties established the legal framework for the conduct of armed conflicts and provided rules for the protection of
those who are not or are no longer taking part in the hostilities.

The Geneva Conventions and their Additional Protocols set out the basic principles of IHL. The principles include the
distinction between civilians and combatants, the prohibition of attacks on civilians, the obligation to take
precautions to avoid or minimize civilian casualties, the prohibition of torture and other forms of cruel, inhuman, or
degrading treatment or punishment, the obligation to provide medical care and attention to the wounded and sick,
and the prohibition of using weapons or methods of warfare that are likely to cause unnecessary suffering.

The development of IHL has continued in the post-World War II era with the adoption of several other international
treaties and protocols, including the Convention on Certain Conventional Weapons (1980), the Chemical Weapons
Convention (1993), and the International Criminal Court Statute (1998).

Today, IHL is an important branch of international law that seeks to balance the military necessity of conducting
hostilities with the need to protect the human rights of civilians and combatants who are not or are no longer taking
part in the hostilities. It applies to all parties to an armed conflict, whether they are states, non-state actors, or
international organizations, and provides rules for the conduct of hostilities, the treatment of prisoners of war and
civilians, and the protection of cultural property and the environment during armed conflicts.

One of the key aspects of IHL is the protection of civilians during armed conflicts. Civilians are defined as persons
who are not taking part in the hostilities, including those who have ceased to take part in hostilities, such as wounded
or sick combatants, prisoners of war, and civilians who have been detained. The Geneva Conventions and their
Additional Protocols provide detailed rules on the treatment of civilians during armed conflicts, including the
prohibition of attacks on civilians and the obligation to take precautions to avoid or minimize civilian casualties.

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Another important aspect of IHL is the protection of prisoners of war.

The protection of prisoners of war (POWs) is a specific aspect of international humanitarian law that is governed by
the Third Geneva Convention. This Convention sets out the rights and obligations of states with regard to POWs,
including their treatment, internment, and release. The Convention is designed to ensure that prisoners of war are
treated humanely and not subjected to torture, inhumane treatment, or other abuses.

On the other hand, the protection of the defenseless refers to the broader principle that civilians and other non-
combatants who are not directly participating in hostilities must be protected from harm during armed conflicts. This
principle is enshrined in the Fourth Geneva Convention, which governs the treatment of civilians and other non-
combatants during times of war. The Convention establishes rules for the treatment of civilians and other protected
persons, including the wounded and sick, detainees, and civilians who are under occupation.

B) Protection of Defenceless in War

The principle of protection of the defenceless in war, also known as the principle of distinction, is one of the core
principles of International Humanitarian Law (IHL). It requires that parties to an armed conflict distinguish between
civilians and combatants, and that they direct their attacks only against military objectives.

The principle of distinction is aimed at minimizing civilian casualties and damage to civilian objects during armed
conflicts. It requires that parties to a conflict take all feasible precautions to avoid or minimize incidental loss of
civilian life, injury to civilians and damage to civilian objects.

Under IHL, civilians are persons who are not members of the armed forces or of an organized armed group fighting
in the conflict. Civilians are entitled to protection against attacks and harm, and parties to a conflict must take all
feasible precautions to avoid or minimize harm to them.

Combatants, on the other hand, are members of the armed forces or of an organized armed group fighting in the
conflict. Combatants are legitimate targets and may be attacked as long as they are taking direct part in hostilities.
However, they must not attack civilians or civilian objects.

In addition to civilians, other categories of people are entitled to special protection under IHL. These include the
wounded and sick, medical personnel, chaplains, and those who are in the hands of the enemy (such as prisoners of
war and civilians who have been detained).

The principle of distinction also prohibits parties to a conflict from using weapons or methods of warfare that are
likely to cause unnecessary suffering or harm to combatants or civilians. This principle is enshrined in the Hague
Conventions of 1899 and 1907, as well as in the Geneva Conventions of 1949 and their Additional Protocols of 1977.

In order to comply with the principle of distinction, parties to a conflict must make a clear distinction between military
objectives and civilian objects. Military objectives are defined as objects which by their nature, location, purpose or
use make an effective contribution to military action and whose total or partial destruction, capture or neutralization
would offer a definite military advantage.

On the other hand, civilian objects are all objects which are not military objectives. They include, for example, homes,
schools, hospitals, and places of worship.

If a military objective is located in or near a civilian object, parties to a conflict must take all feasible precautions to
minimize harm to civilians and civilian objects. This may include warning civilians of impending attacks, choosing
alternative military objectives, or using precision-guided munitions to minimize collateral damage.

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Here are some key points about the protection that international humanitarian law affords to the defenceless in war:

 IHL recognizes the inherent vulnerability of certain groups in armed conflicts, such as civilians, prisoners of
war, and the wounded, sick, and shipwrecked.

 Civilians are protected against attack and must not be the object of attack. They also have the right to be
treated humanely and protected against acts of violence, intimidation, or reprisal.

 Prisoners of war are entitled to be treated humanely, protected against acts of violence or intimidation, and
provided with adequate food, shelter, and medical care. They must also be allowed to correspond with their
families and receive parcels and relief supplies.

 The wounded, sick, and shipwrecked must be cared for and protected by the parties to the conflict. Medical
personnel and facilities must be respected and protected, and parties to the conflict must not interfere with
the provision of medical care.

 IHL also recognizes the protection afforded to cultural property, such as museums, archives, and places of
worship. Cultural property must not be attacked except where necessary for military operations, and parties
to the conflict must take all necessary measures to protect cultural property from damage or destruction.

 The protection afforded to the defenceless in war is not absolute and can be limited by military necessity.
However, parties to the conflict must ensure that any limitations on the protection of the defenceless are
proportionate to the military objective and do not cause unnecessary harm.

Overall, the protection afforded to the defenceless in war by international humanitarian law seeks to mitigate the
effects of armed conflict on civilians, prisoners of war, and other vulnerable groups, and to ensure that parties to the
conflict conduct their military operations in a way that respects the dignity and rights of all persons affected by the
conflict.

In conclusion, the principle of protection of the defenceless in war is a fundamental principle of IHL aimed at
minimizing civilian casualties and damage to civilian objects during armed conflicts. It requires parties to a conflict to
distinguish between civilians and combatants, and to direct their attacks only against military objectives. Parties to a
conflict must also take all feasible precautions to avoid or minimize harm to civilians and civilian objects, and must
not use weapons or methods of warfare that are likely to cause unnecessary suffering or harm.

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 c) Limitation on methods and use of force during armed conflicts
contemporary issues and challenges
Limitations on the methods and use of force during armed conflicts is another important principle of international
humanitarian law. This principle seeks to regulate the conduct of hostilities and minimize the suffering of those
affected by armed conflicts.

The limitation on methods and use of force during armed conflicts is an important aspect of international
humanitarian law (IHL), which seeks to mitigate the impact of armed conflict on civilians and other non-combatants.
Under IHL, the use of force is only permissible when it is necessary for achieving military objectives, and it must be
proportionate to the harm that is likely to be caused.

One of the key challenges in implementing this principle is determining what constitutes a legitimate military
objective, and what types of force are proportionate to that objective. For example, the use of explosive weapons in
densely populated urban areas can cause significant harm to civilians and infrastructure, but may also be necessary
for achieving a military objective. The challenge for states and armed groups is to balance the military necessity of
using force with the imperative of protecting civilians and minimizing harm.

To help address these challenges, the international community has developed a series of protocols that complement
the main Geneva Conventions and provide additional guidance on the use of force during armed conflicts. These
protocols are:

1. Protocol I: This protocol extends the protection of the Geneva Conventions to internal conflicts, which are
defined as armed conflicts that take place within the boundaries of a single state. It also sets out rules on the
conduct of hostilities, including the use of weapons, tactics, and methods of warfare. For example, it prohibits
attacks that are likely to cause unnecessary suffering, such as attacks on civilian objects, as well as the use of
certain weapons, such as landmines.

2. Protocol II: This protocol applies specifically to non-international armed conflicts, which are defined as armed
conflicts between a state and non-state actors or between non-state actors within the boundaries of a single
state. It sets out rules for the treatment of civilians and other non-combatants, as well as combatants who
are no longer taking part in hostilities. For example, it requires that all persons who are not taking direct part
in hostilities, including civilians and members of the armed forces who have laid down their arms, be treated
humanely.

3. Protocol III: This protocol establishes an additional emblem, the Red Crystal, to be used by medical and
religious personnel during armed conflicts. This was done to address the objections of certain countries to
the use of the Red Cross or Red Crescent emblems, which were seen as having religious or cultural
connotations. The Red Crystal emblem is intended to be a neutral emblem that can be used by all countries.

4. Protocol IV: This protocol seeks to protect civilians from the effects of explosive remnants of war, such as
unexploded ordnance and landmines. It requires states to take measures to clear areas of explosive remnants
of war as soon as possible after the end of hostilities, and to provide assistance to victims of such remnants.
It also prohibits the use of certain types of landmines, such as those that are designed to be detonated by
the presence, proximity, or contact of a person.

5. Protocol V: This protocol requires states to take measures to identify and clear explosive remnants of war,
and to assist victims of such remnants. It also requires states to mark and record the location of areas that
are contaminated by explosive remnants of war, and to provide warnings to civilians about the dangers of
such remnants. The protocol aims to reduce the number of casualties and injuries caused by explosive
remnants of war, which can remain active for many years after the end of hostilities.

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While the development of these protocols has helped to clarify and expand the scope of IHL, challenges remain in
implementing and enforcing these rules. One challenge is the difficulty of distinguishing between combatants and
civilians in modern conflicts, particularly in situations where armed groups operate in civilian areas. Another
challenge is the use of new and emerging technologies, such as drones and cyber weapons, which can make it difficult
to apply traditional IHL rules on the use of force.

There are several contemporary challenges related to the limitation on methods and use of force during armed
conflicts. Some of these challenges are:

1. Non-State Armed Groups: The increasing involvement of non-state armed groups in conflicts has made it
difficult to apply the principles of IHL, especially regarding the distinction between civilians and combatants.
Non-state armed groups often do not have the same level of training and discipline as regular armed forces,
and they may not abide by the rules of war.

2. Terrorism: Terrorism has become a major challenge for the application of IHL. Terrorists deliberately target
civilians, and they do not distinguish between combatants and non-combatants. This makes it difficult to
apply the principles of distinction and proportionality.

3. New Weapons: The development of new weapons and technology has created new challenges for the
application of IHL. For example, drones and autonomous weapons can be used to carry out targeted killings,
which raises questions about the principle of distinction.

4. Urban Warfare: Armed conflicts in urban areas pose particular challenges for the protection of civilians. The
use of heavy weapons in urban areas can cause significant harm to civilians, and it can be difficult to
distinguish between combatants and non-combatants.

5. Cyber Warfare: Cyber attacks and cyber warfare have become a growing concern in recent years. Cyber
attacks can cause significant harm to civilian infrastructure, such as hospitals, water supplies, and power
grids.

In recent years, there have also been concerns about the increasing frequency of attacks on humanitarian workers
and facilities, as well as the use of sexual violence as a tactic of war. These challenges highlight the ongoing need to
strengthen and enforce IHL rules, and to ensure that civilians and other non-combatants are protected from harm
during armed conflicts.

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