UNIVERSITY OF STO.

TOMAS
Graduate School of Law
España, Manila

This written report entitled

FUNDAMENTAL PRINCIPLES OF
INTERNATIONAL HUMANITARIAN LAW

is presented as partial
fulfillment in the subject
International Humanitarian Law

Submitted by:
Atty. Melchor A. Pelleja
2011-035360

Submitted to:
Dr. Rey Oliver S. Alejandrino, DCL
Course Facilitator

February 9, 2019

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 I. INTRODUCTION

I. INTRODUCTION

The world as we know was and is confronted repetitively with the cruelties of
warfare. Groups, collectivities, tribes, states et al. have fought in human evolution over
resources, land, religion, and political systems. Kolb and Hyde write that “[W]ar is
perhaps the most ancient form of inter-group relationship.” Countless wars have
occurred in modern world history or are still taking place: Yemen, Syria, Sri Lanka,
Colombia, Bosnia, Vietnam, South Sudan, Rwanda – all countries visualize day after
day the atrocities of wars and the suffering inflicted upon people; moreover, wars show
the death and the destruction they bring as a result. Human beings interact and enter
relations, those from hostile in nature to cooperative. All relations require minimum of
regulation before humanity slips into anarchy; hence, one may say: “ubi societas, ibi
regula”; where there is society, there must be rules; without rules, there is no social
compact of any kind.

International humanitarian law, in this position, steps in and concerns an obvious

question: is the behaviour of the parties to such armed conflicts subject to any
restrictions? The answer should be easy enough: such restrictions do exist, but definite
answers are complicated. Restricting us to the law (rather than morality alone) leads us
to manifold answers: the law of the United Nations Charter, human rights law,
environmental law, the law of neutrality, refugee law, and, last but not least: the ‘laws of
war’, which is specifically designed to constrain the waging of war. Davi Erick writes

[T]he law of armed conflicts – as we have stated repeatedly – is

simple law: with a little common sense and a degree of clear-sightedness,
anyone can grasp its basic tenets for himself without being a legal expert.
To put things as simply as possible, these rules can be summed up in four
precepts: do not attack non-combatants, attack combatants only by legal
means, treat persons in your power humanely, and protect the victims. [...]
At the same time, the law of armed conflicts is complex since it does apply
only in certain situations, those situations are not always easily definable
in concrete terms and, depending on the situation, one and the same act
can be lawful or unlawful, not merely unlawful but a criminal offence, or
neither lawful nor unlawful!

Briefly, IHL regulates the conduct of hostilities and the protection of persons
during an armed conflict. IHL, however, does not regulate the use of force. The legal
regulation of the use of force, ius ad bellum is subject to the Charter of the United
Nations, art. 2.4 and art. 39- 51. It is also necessary to understand that IHL regulates
hostilities only during armed conflict. An armed conflict, international or non-
international, involves the use of armed force by one state against another state, or
hostilities between government armed forces and organized armed groups, or between
such groups within a state. In case of terrorist attacks committed by Anders Breivik in
Oslo 2011, the Neo-Nazi terror trio in Germany between 1999-2007, and Salman Abedi
in Manchester in 2017 (to name a few), there is no armed conflict.

The historical development of IHL can be encapsulated as follows:

3000 BC Customs, Bilateral treaties, Customary law

1859 Henry Dunant assists the wounded on the battlefield of Solferino
1863 Lieber Code (Instructions for the Government of Armies of the United States
in the Field)
1863 Foundation of the ICRC and of the first National Societies
1864 First Geneva Convention

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1868 Saint Petersburg Declaration Renouncing the Use, in Time of War, of Certain
Explosive Projectiles
1880 Oxford Manual on The Laws of War on Land
1899/190 Hague Conventions
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1913 Oxford Manual of the Laws of Naval War
1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare
1929 First Geneva Convention on prisoners of war
1945/194 Establishment of the International Military Tribunals in Nuremberg and Tokyo
8 for the Prosecution and Punishment of the Major War Criminals
1949 Geneva Conventions:

I on Wounded and Sick in the Field

II on Wounded, Sick and Shipwrecked at Sea
III on Prisoners of War
IV on Civilians (in the hands of the enemy)
Common Article 3 on non-international armed conflicts
1954 Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict
1977 Protocols Additional to the Geneva Conventions

Protocol I:
applicable in international armed conflicts (including national liberation wars)
Contents:
Development of the 1949 rules
Adaptation of International Humanitarian Law to the realities of guerrilla
warfare
Protection of the civilian population against the effects of hostilities
Rules on the conduct of hostilities
Protocol II:
applicable to non-international armed conflicts
Contents:
Extension and more precise formulation of the fundamental guarantees
protecting all those who do not or no longer actively participate in hostilities
Protection of the civilian population against the effects of hostilities
1980 UN Convention on Prohibitions or Restrictions of the Use of Certain
Conventional Weapons
1993 Paris Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction
1993/199 Establishment of International Criminal Tribunals for the former Yugoslavia
4 (ICTY), in The Hague, and Rwanda (ICTR) in Arusha
1995/199 Protocols to the 1980 Weapons Convention: Protocol IV on Blinding Laser
6 Weapons New Protocol II on Anti-Personnel Land Mines
1997 Ottawa Convention Banning Anti-Personnel Land Mines
1998 Adoption in Rome of the Statute of the International Criminal Court
1999 Protocol II to the Convention on the Protection of Cultural Property
2000 Optional Protocol to the Convention on the Rights of the Child, on the
Involvement of Children in Armed Conflicts (amending article 38 of the
Convention)
2001 Amendment to Article 1 of the Convention on Certain Conventional Weapons
of 1980, in Order to Extend it to Non-International Armed Conflicts
2002 Entry into force of the Statute of the International Criminal Court, on July 1
2002

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2003 Protocol on Explosive Remnants of War (Protocol V to the 1980
Convention), 28 November 2003
2005 Publication of the ICRC Study on Customary International Humanitarian Law
2005 Protocol III additional to the Geneva Conventions relating to the Adoption of
an Additional Distinctive Emblem
2008 Convention on Cluster Munitions

II. BODY

A. Philosophy of International Humanitarian Law

International Humanitarian Law (IHL) can be defined as the branch of international law
limiting the use of violence in armed conflicts by:

a. sparing those who do not[1] or no longer[2] directly[3] participate in hostilities;

b. restricting it to the amount necessary to achieve the aim of the conflict, which –
independently of the causes fought for[4] – can only be to weaken the military
potential of the enemy.[5]

It is from this definition that the basic principles of IHL may already be drawn, namely:

 the distinction between civilians and combatants,

 the prohibition to attack those hors de combat,
 the prohibition to inflict unnecessary suffering,
 the principle of necessity, and
 the principle of proportionality.

This definition nevertheless also reveals the inherent limits of IHL:

 it does not prohibit the use of violence;

 it cannot protect all those affected by an armed conflict;
 it makes no distinction based on the purpose of the conflict;
 it does not bar a party from overcoming the enemy;
 it presupposes that the parties to an armed conflict have rational aims and that
those aims as such do not contradict IHL.

B. IHL: a branch of international law governing the conduct of States and

individuals

IHL applies in two very different types of situations: international armed conflicts
and non-international armed conflicts. Technically, the latter are called “armed conflicts
not of an international character”. It has been held, but is not entirely uncontested, that
every armed conflict which “does not involve a clash between nations” is not of an
international character, and that the latter phrase “bears its literal meaning”. All armed
conflicts are therefore either international or non-international, and the two categories
have to be distinguished according to the parties involved rather than by the territorial
scope of the conflict.

i. International armed conflict

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The IHL relating to international armed conflicts applies “to all cases of declared war or
of any other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of them.”

The notion of “armed conflict” has, from 1949 onwards, replaced the traditional notion of
“war”. A State can always pretend, when it commits a hostile act against another State,
that it is not making war, but merely engaging in a police action, or acting in legitimate
self-defence. The expression ‘armed conflict’ makes such arguments less easy. Any
difference arising between two States and leading to the intervention of armed forces is
an armed conflict [...] even if one of the Parties denies the existence of a state of war
[...].” The ICTY confirmed in the Tadic case that “an armed conflict exists whenever
there is a resort to armed force between States […]”. This definition has since been
used several times by the ICTY’s Chambers and by other international bodies. When
the armed forces of two States are involved, suffice it for one shot to be fired or one
person captured (in conformity with government instructions) for IHL to apply, while in
other cases (e.g. a summary execution by a secret agent sent by his government
abroad), a higher level of violence is necessary.

The same set of provisions also applies “to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation meets with no
resistance [...].” In application of a standard rule of the law of State responsibility on the
attribution of unlawful acts, a conflict between governmental forces and rebel forces
within a single country becomes of international character if the rebel forces are de facto
agents of a third State. In this event, the latter’s conduct is attributable to the third State
and governed by the IHL of international armed conflicts.

According to the traditional doctrine, the notion of international armed conflict

was thus limited to armed contests between States. During the Diplomatic Conference
of 1974-1977, which lead to the adoption of the two Additional Protocols of 1977, this
conception was challenged and it was finally recognized that “wars of national
liberation” should also be considered as international armed conflicts.

ii. Non-international armed conflict

Traditionally, non-international armed conflicts (or, to use an outdated term, “civil

wars”) were considered as purely internal matters for States, in which no international
law provisions applied.This view was radically modified with the adoption of Article 3
common to the four Geneva Conventions of 1949. For the first time the society of States
agreed on a set of minimal guarantees to be respected during non-international armed
conflicts.

Unlike violence between the armed forces of States, not every act of violence
within a State (even if directed at security forces) constitutes an armed conflict. The
threshold of violence needed for the IHL of non-international armed conflicts to apply is
therefore higher than for international armed conflicts. In spite of the extreme
importance of defining this lower threshold below which IHL does not apply at all, Article
3 does not offer a clear definition of the notion of non-international armed conflict.

During the Diplomatic Conference, the need for a comprehensive definition of the
notion of non-international armed conflict was reaffirmed and dealt with accordingly in
Article 1 of Additional Protocol II.According to that provision, it was agreed that Protocol
II “[s]hall apply to all armed conflicts not covered by Article 1 [...] of Protocol I and which
take place in the territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol [...]”.

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 It should be noted that this fairly restrictive definition applies only to Protocol II. It
does not apply to Article 3 common to the four Geneva Conventions. Practically, there
are thus situations of non-international armed conflict in which only common Article 3
will apply, because the level of organization of the dissident groups is insufficient for
Protocol II to apply, or the fighting is between non-State armed groups. Conversely,
common Article 3 will apply to all situations where Protocol II is applicable.

Moreover, the ICC Statute provides an intermediary threshold of application. It

does not require that the conflict be between governmental forces and rebel forces, that
the latter control part of the territory, or that there be a responsible command. The
conflict must, however, be protracted and the armed groups must be organized. The
jurisprudence of the ICTY has, in our view correctly, replaced the conflict’s protracted
character by a requirement of intensity. It requires a high degree of organization and
violence for any situation to be classified as an armed conflict not of an international
character.

Today, there is a general tendency to reduce the difference between IHL

applicable in international and in non-international armed conflicts. The jurisprudence of
international criminal tribunals, the influence of human rights and even some treaty rules
adopted by States have moved the law of non-international armed conflicts closer to the
law of international armed conflicts, and it has even been suggested in some quarters
that the difference be eliminated altogether. In the many fields where the treaty rules still
differ, this convergence has been rationalized by claiming that under customary
international law the differences between the two categories of conflict have gradually
disappeared. The ICRC study on customary International Humanitarian Law comes,
after ten years of research, to the conclusion that 136 (and arguably even 141) out of
161 rules of customary humanitarian law, many of which are based on rules of Protocol
I applicable as a treaty to international armed conflicts, apply equally to non-
international armed conflicts.

III. Fundamental principles of International Humanitarian Law

“General principles of law recognized by civilized nations” may first be

understood as those principles of domestic law which are common to all legal orders.
Given the large number of States and the great variety of their legal systems, only very
few such principles can be formulated precisely enough to be operational. Such
principles, e.g., good faith and proportionality, which have also become customary law
and have been codified, nevertheless also apply in armed conflicts and can be useful in
supplementing and implementing IHL. Other principles may be seen as intrinsic to the
idea of law and based on logic rather than a legal rule. Thus if it is prohibited to attack
civilians, it is not law but logic which prescribes that an attack directed at a military
objective has to be stopped when it becomes apparent that the target is (exclusively)
civilian.

Even more important for IHL than the foregoing are its general principles, e.g.,
the principle of distinction (between civilians and combatants, civilian objects and
military objectives), the principle of necessity, and the prohibition on causing
unnecessary suffering. These principles, however, are not based on a separate
source of international law, but on treaties, custom and general principles of law. On the
one hand, they can and must often be derived from the existing rules, expressing the
rules’ substance and meaning. On the other, they inspire existing rules, support them,
make them understandable, and have to be taken into account when interpreting them.

The International Conventions contain a multitude of rules which specify the

obligations of states in very precise terms, but this is not the whole story. Behind these
rules are a number of principles which inspire the entire substance of the documents.

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Sometimes we find them expressly stated in the Conventions, some of them are clearly
implied and some derive from customary law.

In the legal sector now under consideration, the minimum principles of

humanitarian law are valid at all times, in all places and under all circumstances,
applying even to states which may not be parties to the Conventions, because they
express the usage of peoples, [...].

The principles do not in any sense take the place of the rules set forth in the
Conventions. It is to these rules that jurists must refer when the detailed application of
the Conventions has to be considered.

International humanitarian law is the branch of international law that seeks to

impose limits on the destruction and suffering caused by armed conflict. It establishes,
in the words of Art. 22 of the Hague Regulations, that “the right of belligerents to adopt
means of injuring the enemy is not unlimited.” A group of general and fundamental
principles are central in pursuing this aim to limit the effects of armed conflicts:

 the principle of humanity (the “elementary considerations of humanity being

reflected and expressed in the Martens clause)
 the principle of distinction between civilians and combatants, and between
civilian objects and military objectives;
 the principle of proportionality,
 the principle of military necessity (from which flows the prohibition of superfluous
injury and unnecessary suffering.

i. Distinction

In the 18th century, Jean-Jacques Rousseau formulated the following principle:

“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.” Article 18 of the Lieber Code
(1863) reiterates this basic principle.
The principle of distinction imposes an obligation on all commanders to draw a
strict line between combatants (members of armed forces) and every-one else. The use
of force is allowed only against combatants, and only as long as there is resistance.
Persons placed hors de combats because of sick-ness, injury etc. are no longer a
legitimate objective of military operations. Article 43 (2) of Protocol I defines “combatant”
as follows: “Members of armed forces of a party to a conflict... have the right to
participate directly in hostilities.” A combatant may fight other combatants, even kill
them, and will not be held personally responsible for his acts. Armed forces are
characterized by a chain of command combined with a disciplinary system and
legitimized through internal legislation.
Article 44 (3) of Protocol I stipulates “combatants are obliged to distinguish
themselves from the civilian population -while they are engaged in an attack or in a
military operation preparatory to an attack.” Combatants are entitled to special
protection as prisoners of war (POWs) upon capture (Article 4, GC III). Any person not
belonging to the armed forces – also in the case of doubt – is considered a civilian.
(Article 52, P I). All acts of violence against civilians or civilian property,9 whether
committed in offense or defense, are prohibited.
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 The principle of distinction protects civilian population and civilian objects from
the effects of military operations. It requires parties to an armed conflict to distinguish at
all times, and under all circumstances, between combatants and military objectives on
the one hand, and civilians and civilian objects on the other; and only to target the
former. It also provides that civilians lose such protection should they take a direct part
in hostilities. The principle of distinction has also been found by the ICRC to be
reflected in state practice; it is therefore an established norm of customary international
law in both international and non-international armed conflicts.

ii. Proportionality

The principle of proportionality prohibits attacks against military objectives which

are “expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated”. In other words, the principle of
proportionality seeks to limit damage caused by military operations by requiring that the
effects of the means and methods of warfare used must not be disproportionate to the
military advantage sought.

Article 35 of Protocol I affirms that “the right of the parties to the conflict to
choose methods and means of warfare is not unlimited”. Article 35 (2) establishes that
“it is prohibited to employ weapons, projectiles and materials and methods of warfare of
a nature to cause superfluous injury or unnecessary suffering.” The U. S. Air Force Law
of War Manual defines military necessity as follows: “Measures of regulated force not
forbidden by international law which are indispensable for securing the prompt
submission of the enemy, with the least possible expenditure of economic and human
resources.” The principle of military necessity there-fore states that (i) the use of military
force must be controlled (ii) only used when necessary (iii) is not to be used more than
necessary.
The fact that IHL makes allowance for military purposes might seem not to be
“humanitarian” at all.
Firstly, it is important to bear in mind that IHL developed when war was still a
completely legal instrument of foreign policy. Secondly, IHL is only the confluence of
diverging interests, a feasible and realistic compromise be-tween the aims of war (as
states still want to retain the use of force as ultima ratio) and the principles of humanity.
The underlying principle of proportionality aims at striking a balance be-tween the two
conflicting interests of military necessity and the requirements of humanity. The
advantage of accomplishing a certain military objective must strongly outweigh any
possible collateral damage. Due to a strong influx from human rights law, the balance
between military necessity and humanity is now tilting in favor of the latter: The
humanitarian principle has become the dominant one.

Necessity and proportionality are established principles in humanitarian law.

Under IHL, a belligerent may apply only the amount and kind of force necessary to
defeat the enemy. Further, attacks on military objects must not cause loss of civilian life
considered excessive in relation to the direct military advantage anticipated. Every
feasible precaution must be taken by commanders to avoid civilian casualties. The
principle of proportionality has also been found by the ICRC to form part of customary
international law in international and non-international armed conflicts.

iii. Limitations

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 The prohibition of attacks against those hors de combat

The prohibition to attack any person hors de combat (those who are sick and
wounded, prisoners of war) is a fundamental rule under IHL. For example, while a
solider could be targeted lawfully under normal circumstances, if that soldiers
surrenders or is wounded and no longer poses a threat, then it is prohibited to attack
that person. Additionally, they may be entitled to extensive protections if they meet the
criteria of being a Prisoner of War.

The prohibition on the infliction of unnecessary suffering

While IHL does permit violence, it prohibits the infliction of unnecessary suffering
and superfluous injury. While the meaning of such terms is unclear and the protection
may as such be limited, even fighters who may be lawfully attacked, are provided
protection by this prohibition. One rule that has been established based on this principle
is the prohibition on the use of blinding laser weapons.

The notion of necessity

A dominant notion within the framework of IHL is military necessity, often the
principle which clashes most with humanitarian protection. Military necessity permits
armed forces to engage in conduct that will result in destruction and harm being
inflicted. The concept of military necessity acknowledges that under the laws of war,
winning the war or battle is a legitimate consideration.

However the concept of military necessity does not give the armed forces the
freedom to ignore humanitarian considerations altogether and do what they want. It
must be interpreted in the context of specific prohibitions and in accordance with the
other principles of IHL.

It is important to note that the notion itself is to be found within the rules of IHL.
For example, Article 52 of Addition Protocol I lists those objects that can be subject to
lawful attacks. The notion cannot be applied to override specific protections, or create
exceptions to rules where the text itself does not provide for one.

The principle of humanity

The principle of humanity, and its absence during the battle of Solferino of 1859,
was the central notion that inspired the founder of the International Committee of the
Red Cross (ICRC), Henry Dunant. The principle stipulates that all humans have the
capacity and ability to show respect and care for all, even their sworn enemies. The
notion of humanity is central to the human condition and separates humans from
animals.

IHL, the principles of which can be found in all major religions and cultures, set
out only basic protections, but ones which look to demonstrate that even during armed
conflict there is some common sense of and respect for humanity. Modern IHL is not
naive and accepts that harm, destruction and death can be lawful during armed conflict.
IHL simply looks to limit the harm, and the principle of humanity is very much at the
heart of this ambition. Many rules of IHL are inspired by this notion, specifically those
setting out protections for the wounded and sick.

iv. De Martens Clause

The Martens Clause and the Principle of Humanity

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 Von Martens, the Russian delegate to The Hague Peace Conference in 1899,
laid down the following famous pas-sage in the preamble to the Second Hague
Convention respecting the Laws and Customs of War on Land: “Until a more complete
code of the laws of war is issued, the High Contracting Parties think it right to declare
that in cases not included in the Regulations adopted by them, populations and
belligerents re-main under the protection and empire of the principles of international
law, as they result from the usages established be-tween civilized nations, from the laws
of humanity and the requirements of the public conscience.” The Martens Clause
contains the premise to preserve – even in war – a certain minimum of human dignity.
Von Martens argued in favor of a general clause acting as a sort of safety net. Acts not
expressively forbidden are therefore still subject to a test of basic humanity. Never must
there be unlimited discretion for any military commander. This rule is nowadays
recognized as customary international law.

The Martens Clause was repeatedly included in other 20th century treaties (cf.
preamble to Protocol II). In addition, it played a major role in the Nuremberg Trials: The
court established that the this norm was far more than a solemn declaration; rather does
the Martens Clause frame the usages be-tween civilized nations, the laws of humanity
and the public conscience as a legal measuring rod in the absence of express norms of
IHL. In the words of the ICJ judge Weeramantry, it contains “in its short phraseology the
entire philosophy of the law of war.” The same considerations of humanity left
considerable traces in Article 3 common to the Four GCs. It was introduced due to the
Spanish Civil War as a minimum humanitarian standard, applicable in internal armed
conflicts; for this reason Article 3 has frequently been referred to as a mini-convention
within the broader framework of the Four GCs.

The principle of humanity states that a soldier’s aim is to disable other

combatants in order to reach a defined military objective. Indiscriminate attacks or
attacks against civilians or civilian targets are strictly prohibited.

Express recognition of the existence and particularly important examples of the

general principles of IHL are the “elementary considerations of humanity” and the so-
called “Martens clause”, which prescribes that in cases not covered by treaties (and
traditional customary international 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”.

It is recognized that this clause itself is part of customary international law. It is

very important that both clauses underline that not everything that is not prohibited is
lawful in war and that answers to questions relating to the protection of war victims
cannot be found exclusively through a purely positivist approach; it is, however, not
easy to find precise answers to real problems arising on the battlefield through these
clauses. In a world with extremely varied cultural and religious traditions, in which
people have diverging interests and different historical perspectives, those clauses can
generally no more than indicate in which direction to look for a solution.

The Martens Clause reads:

“Until a more complete code of the laws of war has been issued, the High
Contracting Parties deem it expedient to declare that, in cases not included in the
Regulations adopted by them, the inhabitants and the belligerents remain under the
protection and the rule of the law of nations, as they result from the usages established
among civilized peoples, from the laws of humanity and the dictates of public
conscience.”

It is named after Fyodor Fyodorovich Martens, who introduced the clause for the
first time in the Preamble of the 1899 Hague Convention (as a compromise in

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discussions on the treatment of fighters not accorded prisoner-of-war status). The
Martens Clause, understood today as of general applicability, has acquired the status of
a customary rule and has been adopted, either in whole or in part, by other IHL
instruments.

The effect of the clause is to underline that in cases not covered by IHL treaties,
persons affected by armed conflicts will never find themselves completely deprived of
protection. Instead, the conduct of belligerents remains regulated at a minimum by the
principles of the law of nations, the laws of humanity, and from the dictates of public
conscience.

v. Protection of Civilians and Civilian Objects

The lack of international agreement on the definition of the concept of ‘protection

of the civilian population’ reflects the differences of opinion that exist between countries.
For instance, China and the Russian Federation accord considerable weight to respect
for the national sovereignty of states. They view this concept as a safeguard against
undesirable interference in domestic affairs, where action is taken under the guise of
humanitarian intervention while the true aim being pursued is regime change. A number
of other countries (such as Brazil and Turkey) fear the selective application of the
concept of ‘protection of the civilian population. The present advisory report defines the
protection of the civilian population as follows:
•all activities that seek to promote the safety, physical integrity, and dignity of the civilian
population, especially of vulnerable groups;
•the prevention of war crimes and other acts of violence against civilians;
• the safeguarding of access to humanitarian aid and the promotion of full respect for
the rights of the individual, in accordance with international law, in particular human
rights and international humanitarian law.

The concept of ‘protection of the civilian population’ applies in the three phases
distinguished in this advisory report: latent conflict, manifest conflict, and the post-
conflict situation. However, international humanitarian law applies primarily during
hostilities – that is, in the phase of manifest conflict. It does not apply until the level of
violence has exceeded a certain threshold value. This implies that the term ‘civilian’ has
a different meaning in the manifest conflict phase than in the phases before and after
this phase. In the manifest conflict phase, civilians are contrasted with the military
(combatants). The distinction between combatants (military personnel) and non-
combatants (civilians) is fundamental to international humanitarian law. This law does
not apply, however, in the latent or post-conflict phases and the distinction between
civilians and combatants is not relevant in those phases. Furthermore, the distinction
between civilians (in the sense of non-combatants) and military personnel (combatants)
is not in practice a sharp one, for instance because a civilian may temporarily take part
in the conflict. At that point in time, the civilian concerned has the status of combatant
and is a legitimate military target, but may regain civilian status at a later stage. This
blurs the distinction between civilians and combatants. In the latent and post-conflict
phases, the ‘civilian population’ includes all persons who are subject to the jurisdiction
of the state.

IHL provides that civilians under the power of enemy forces must be treated
humanely in all circumstances, without any adverse distinction. They must be protected
against all forms of violence and degrading treatment, including murder and torture.
Moreover, in case of prosecution, they are entitled to a fair trial affording all essential
judicial guarantees.

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 The protection of civilians extends to those trying to help them, in particular
medical units and humanitarian or relief bodies providing essentials such as food,
clothing and medical supplies. The warring parties are required to allow access to such
organizations. The Fourth Geneva Convention and Additional Protocol I specifically
require belligerents to facilitate the work of the ICRC.

While IHL protects all civilians without discrimination, certain groups are singled
out for special mention. Women and children, the aged and sick are highly vulnerable
during armed conflict. So too are those who flee their homes and become internally
displaced or refugees. IHL prohibits forced displacements by intimidation, violence or
starvation.

Families are often separated in armed conflict. States must take all appropriate
steps to prevent this and take action to re-establish family contact by providing
information and facilitating tracing activities.

The protection of civilians provided by the Geneva Conventions and Additional

Protocols is extensive. The problem of the past 50 years has been application. Neither
States nor non-State armed groups have respected their obligations adequately.
Civilians have continued to suffer excessively in almost every armed conflict.

In some conflicts civilians have been specifically targeted and subjected to

terrible atrocities, ignoring the very basis of the Geneva Conventions, respect for the
human person. It is for this reason that the ICRC continues to press States to respect
and ensure respect for the principles of IHL, especially the protection of civilians.

vi. Limitations of Methods and Means of Warfare

Methods of warfare are the tactics employed in conflicts vis a vis an enemy.
Means of warfare, then, are the weapons or weapons systems used. As it was
described earlier, the only and sole objective in war is to weaken the strength of an
adversaries in conflicts, is to weaken and overpower the opponent’s military forces. War
history highlights the necessity to restrict the use of force in order to limit the risks of
extermination and total destruction of the enemy. Even more problematic is that in times
of increasing non-international armed conflicts, the respect for methods of warfare
getting more and more problematic, as the means of opposed armed forces are in
severe imbalance. While the lack of balance may be noted in both international and
non-international armed conflicts, in non-international armed conflict the lack of balance
is further intensified by the fact that the conflict situations oppose national armed forces
with armed groups that do not enjoy comparable structure or means.

The expression 'means of warfare' appears often in combination with the

expression 'methods of warfare' IHL. Part III, Section I of Additional Protocol I to the
Geneva Conventions is called 'Methods and Means of Warfare'. Art. 35 of that Section
enunciates 'Basic rules', two of which explicitly mention 'means of warfare’, while art. 36
in the same section carries the title 'new weapons' and refers to the employment of 'a
new weapon, means or method of warfare'. Distinction between means and methods is,
was often blurred in the legal codifications. Art. 101 of the above mentioned Lieber
Code describes deception in war as a 'means of hostility', the 1899 and 1907 Hague
Regulations use the term 'means of injuring the enemy' in art. 22 to circumscribe a
range of military activities not limited to specific weapons, and art. 21 of the 1922/1923
Hague Rules on Air Warfare refers to 'The use of aircraft for propaganda purposes' as a
'means of warfare' and art. 14 of the ICRC's 1956 Draft Rules for the Limitation of the

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Dangers incurred by the Civilian Population in Time of War contains an article bearing
the title 'Prohibited methods of warfare' but pertains to specific weapons. In the end, it is
about the weapon’s effects that will always result from a combination of its design and
the manner in which it is used for warfare.

The selections of methods and means of warfare cannot follow arbitrarily, but
must be deliberately chosen. International law restricts the manufacture, employment
and utilization of certain weapons. In particular, those that strike civilians and
combatants indiscriminately or causing damage that is extensive or basically irreversible
and is disproportionate to any specific military advantage (see also Rules 7 to 24 of the
customary IHL study). Moreover, IHL prohibits wanton violence and destruction. It
requires that any means of violence employed

 be justified by a real and direct military necessity,

 be directed to a military objective, and
 be proportionate to the threat.

The above-mentioned principles are known as the principles of distinction,

military necessity and proportionality. In the assessment of the principle of
proportionality, incidental loss of civilians by the attack of a military objective and the
duty to take necessary precautions to limit them must be accounted for.

Essentially, IHL outlaws:

 the use of means and methods of warfare of a nature to cause superfluous injury
or unnecessary suffering (API Art. 35; Art. 22 of the rules of the 1907 Hague
Conventions; and the 1868 Saint Petersburg Declaration);
 carrying out attacks with the goal that there will be no survivors—in other words,
giving no quarter (API Arts. 40, 41; Art. 35 of the 1907 Hague Convention on the
laws and customs of war). Rule 46 of the customary IHL study provides that
“[o]rdering that no quarter will be given, threatening an adversary therewith or
conducting hostilities on this basis is prohibited.”

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References:

List of Customary Rules of International Humanitarian Law

https://casebook.icrc.org/glossary/fundamental-principles-ihl
http://www.nyulawglobal.org/globalex/International_Humanitarian_Law.html
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2507144
https://aiv-advies.nl/download/ae25553d-ea19-4f99-9b2b-586385dbe7d7.pdf

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