International humanitarian law is increasingly perceived as part of human
rights law applicable in armed conflict. The greater awareness of the
relevance of humanitarian law to the protection of people in armed conflict,
coupled with the increasing use of human rights law in international affairs,
The philosophy of humanitarian law
Traditional manuals of humanitarian law cite the basic principles
of this law as being those of military necessity, humanity and
chivalry. the influences on the development of the law in Europe
was the church's just war doctrine, [4 ] which also encompassed
the justice of resorting to force, the foundations of international
humanitarian law were laid at a time when there was no disgrace
in beginning a war. the philosophy underlying the customary law
of war the Lieber Code of 1863[6 ] , as this code was used as the
principal basis for the development of the Hague Conventions of
1899 and 1907 which in turn influenced later developments.
The relevance of war being a lawful activity at the time is
reflected in Article 67 of the Lieber Code:
"The law of nations allows every sovereign government to
make war upon another sovereign state, and, therefore, admits
of no rules or laws different from those of regular warfare,
regarding the treatment of prisoners of war, although they may
belong to the army of a government which the captor may
consider as a wanton and unjust assailant".
The law was therefore based on what was considered necessary
to defeat the enemy and outlawed what was perceived as
unnecessary cruelty:
"Military necessity, as understood by modern civilized
nations, consists in the necessity of those measures which are
indispensable for securing the ends of the war, and which are
lawful according to the modern law and usages of war" (Art. 14).
"Military necessity does not admit of cruelty - that is, the
infliction of suffering for the sake of suffering or for revenge, nor
of maiming or wounding except in fight, nor of torture to extort
confessions. It does not admit of the use of poison in any way,
nor of the wanton devastation of a district..." (Art. 16).
Two basic rules of international humanitarian law, namely the
protection of civilians and the decent treatment of prisoners of
war, are described in the following terms:
"Nevertheless, as civilization has advanced during the
last centuries, so has likewise steadily advanced, especially in
war on land, the distinction between the private individual
belonging to a hostile country and the hostile country itself, with
its men in arms. The principle has been more and more
acknowledged that the unarmed citizen is to be spared in
person, property, and honour as much as the exigencies of war
will admit" (Art. 22).
The importance of respectful treatment of prisoners of war is
referred to as follows:
"A prisoner of war is subject to no punishment for being a
public enemy, nor is any revenge wreaked upon him by the
intentional infliction of any suffering, or disgrace, by cruel
imprisonment, want of food, by mutilation, death, or any other
barbarity" (Art. 56).
"Honorable men, when captured, will abstain from giving to
the enemy information concerning their own army, and the
modern law of war permits no longer the use of any violence
against prisoners in order to extort the desired information or to
punish them for having given false information" (Art. 80).
On the protection of hospitals the Lieber Code states:
"Honorable belligerents often request that the hospitals within
the territory of the enemy may be designated, so that they may
be spared..." (Art. 116).
"It is justly considered an act of bad faith, of infamy or
fiendishness, to deceive the enemy by flags of protection..." (Art.
1 17).
The chapter relating to occupied territory specifies the action
that an occupier may take for military purposes, in particular
levying taxes and similar measures, but is very clear about the
types of abuses that are prohibited:
"All wanton violence committed against persons in the
invaded country, all destruction of property not commanded by
the authorized officer, all robbery, all pillage or sacking, even
after taking a place by main force, all rape, wounding, maiming,
or killing of such inhabitants, are prohibited under the penal of
death, or such other severe punishment as may seem adequate
for the gravity of the offense.
A soldier, officer or private, in the act of committing such
violence, and disobeying a superior ordering him to abstain from
it, may be lawfully killed on the spot by such superior" [7 ] (Art.
44).
Finally, in this small selection of articles, mention should be
made of Lieber's caution to States in their resort to reprisals
which were still generally considered lawful at that time:
"Retaliation will ... never be resorted to as a measure of
mere revenge, but only as a means of protective retribution, and
moreover, cautiously and unavoidably; that is to say, retaliation
shall only be resorted to after careful inquiry into the real
occurrence, and the character of the misdeeds that may
demand retribution.
Unjust or inconsiderate retaliation removes the belligerents
farther and farther from the mitigating rules of regular war,
and by rapid steps leads them nearer to the internecine
wars of savages" (Art. 28).
The major characteristic of humanitarian law which first tends to
strike a human rights lawyer is the fact that the law makes
allowance in its provisions for actions necessary for military
purposes. Much of it may therefore not seem very " humanitarian
" , and indeed many lawyers and military personnel still prefer to
use the traditional name, " the law of war " or " the law of armed
conflict”.
The fact that military necessity is included in the rules of
humanitarian law is well explained in the German Military
Manual as follows:
"Military necessity has been already taken into consideration
by the conventions on the law of war, because the law of war
Constitutes a compromise between the necessities to obtain the
aims of war and the principles of humanity".[9]
This balance between military necessity[I0 ] and humanity is
broadly speaking achieved in four different ways.[11 ] First,
some actions do not have any military value at all and are
therefore simply prohibited, for example, sadistic acts of cruelty,
pillage and other private rampages by soldiers which, far from
helping the military purpose of the army, tend to undermine
professional disciplined behaviour.
Secondly, some acts may have a certain military value, but it has
been accepted that humanitarian considerations override
these. On this basis, the use of poison and toxic gases has been
prohibited.
Thirdly, some rules are a true compromise in that both the
military and the humanitarian needs are accepted as important
to certain actions and consequently consideration of both is
limited to some extent. An example is the rule of proportionality
in attacks, which accepts that civilians will suffer " incidental
damage " (the limitation with respect to humanitarian needs),
but that such attacks must not take place if the incidental
damage would be excessive in relation to the value of the target
(the limitation with respect to military needs).
Finally, some provisions allow the military needs in a particular
situation to override the normally applicable humanitarian
rule. Conceptually, these provisions resemble more closely the
limitation clauses commonly found in human rights
treaties. Some provisions introduce the limitation within the
body of the protective rule, for example, medical personnel
cannot be attacked unless they engage in hostile military
behaviour. Secondly, certain protective actions required by the
law are restricted by the military situation. For example, parties
to a conflict are to take " all possible measures " to carry out the
search for the wounded [13 ] and dead, and " whenever
circumstances permit " they are to arrange truces to permit the
removal of the wounded. There are also a number of limitation
clauses that refer directly to military necessity. For example,
immunity may in "exceptional cases of unavoidable military
necessity" be withdrawn from cultural property under special
protection.
Derogation in human rights law is allowed in most general
treaties in times of war or other emergency threatening the life
of the nation.[15 ] Humanitarian law is made precisely for those
situations, and the rules are fash ioned in a manner that will not
undermine the ability of the army in question to win the war
The philosophy of human rights law
human rights treaties is that they are arranged in a series of
assertions, each assertion setting forth a right that all individuals
have by virtue of the fact that they are human. Thus the law
concentrates on the value of the persons themselves, who have
the right to expect the benefit of certain freedoms and forms of
protection.
The former indicates how a party to a conflict is to behave in
relation to people at its mercy, whereas human rights law
concentrates on the rights of the recipients of a certain
treatment.
The second difference in the appearance of the treaty texts is
that humanitarian law seems long and complex, whereas human
rights treaties are comparatively short and simple.
thirdly, there is a phenomenon in human rights law which is
quite alien to humanitarian law, namely, the concurrent
existence of both universal and regional treaties, and also the
fact that most of these treaties make a distinction between so-
called " civil and political rights " and " economic, social and
cultural " rights. The legal difference between these treaties is
that the " civil and political " ones require inst ant respect for the
rights enumerated therein, whereas the " economic, social and
cultural " ones require the State to take appropriate measures in
order to achieve a progressive realization of these rights
There are a number of theories that have been used as a basis
for human rights law, including those stemming from religion
(i.e. the law of God which binds all humans), the law of nature
which is permanent and which should be respected, positivist
utilitarianism and socialist movements
However, the first major international instrument defining "
human rights " , namely the 1948 Universal Declaration of
Human Rights, c ontains not only civil and political but also
economic and social rights
Conceptual similarities in present-day humanitarian law
and human rights law
In general, humanitarian law is now less perceived as a code of
honour for combatants than as a means of sparing non-
combatants as much as possible from the horrors of war. [27 ]
From a purist human rights point of view, based as it is on
respect for human life and wellbeing, the use of force is in itself a
violation of human rights.
that humanitarian law is an effective mechanism for the
protection of people in armed conflict and that such protection
remains necessary because unfortunately the legal prohibition of
the use of force has not in reality stopped armed conflicts.
The major legal difference is that humanitarian law is not
formulated as a series of rights, but rather as a series of duties
that combatants have to obey.
The most important general observation to be made is that, like
human rights law, humanitarian law is based on the premise that
the protection accorded to victims of war must be without any
discrimination. This is such a fundamental rule of human rights
that it is specified not only in the United Nations Charter but also
in all human rights treaties. One of many examples in
humanitarian law is Article 27 of the Fourth Geneva Convention
of 1949:
"...all protected persons shall be treated with the same
consideration by the Party to the conflict in whose power they
are, without any adverse distinction based, in particular, on race,
religion or political opinion".
First and foremost, victims of war, i.e. those persons directly in
the power of the enemy, are not to be murdered as this amounts
to an unnecessary act of cruelty. These persons are mainly
protected by the 1949 Geneva Conventions, with some extension
of this protection in 1977 Additional Protocol I. As far as the
protection of life during hostilities is concerned, it is obvious that
the lives of combatants cannot be protected whilst they are still
fighting. However, humanitarian law is not totally s ilent even
here, for the rule that prohibits the use of weapons of a nature to
cause superfluous injury or unnecessary suffering is partly aimed
at outlawing those weapons that cause an excessively high death
rate among soldiers.
The most important contribution of Protocol I of 1977 is the
careful delimitation of what can be done during hostilities in
order to spare civilians as much as possible. The balance
between military necessities and humanitarian needs that was
explained in the Lieber Code continues to be at the basis of this
law, and the States that negotiated this treaty had this firmly in
mind so as to codify a law that was acceptable to their military
staff. The result is a reaffirmation of the limitation of attacks to
military objectives and a definition of what this means, [34 ] but
accepting the occurrence of " incidental loss of civilian life "
subject to the principle of proportionality.
On the other hand, the Protocol protects life in a way that goes
beyond the traditional civil right to life. First, it prohibits the
starvation of civilians as a method of warfare and consequently
the destruction of their means of survival [36 ] (which is an
improvement on earlier customary law). Secondly, it offers
means for improving their chance of survival by, for example,
providing for the declaration of special zones that contain no
military objectives [37 ] and consequently may not be
attacked. Thirdly, there are various stipulations in the Geneva
Conventions and their Additional Protocols that the wounded
must be collected and given the medical care that they need. In
human rights treaties this would fall into the category of "
economic and social rights " .[38 ] Fourthly, the Geneva
Conventions and their Protocols specify in considerable detail the
physical conditions that are needed in order to sustain life in as
reasonable a condition as possible in an armed conflict
The next " hard-core " right is that no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or
punishment. Humanitarian law also contains an absolute
prohibition of such behaviour,
As far as the prohibition of slavery is concerned, this is explicitly
laid down in 1977 Protocol II;[44 ] the possibility of slavery is
furthermore precluded by the various forms of protection given
elsewhere in the Geneva Conventions. It is interesting to note in
particular that this prohibition was well established in customary
law, and is reflected in the Lieber Code's articles on the
treatment of prisoners of war, who are not to be seen as the
property of those who captured them, [45 ] and on the treatment
of the population in occupied territory. [46 ]
human rights bodies are now recognizing the importance of
judicial guarantees to protect hard-core rights.
The protection of children and family life is also given a great deal of
importance in humanitarian law.
