– Definition of IHL: IHL may be described as a set of rules that seek, for humanitarian reasons, to limit the effects of armed conflict by:
IHL protects people who are not taking part in the fighting, adversaries who have surrendered, adversaries who have been captured, adversaries who are injured or sick.
IHL imposes restrictions on the ability to destroy, the choice of weapons, and the means of waging war: what can be at-tacked, what weapons may be used, what precautions must be taken to reduce the number of civilian casual-ties, etc.
– Origins of IHL: IHL did not come into being with the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864. In fact, there has never been a war that was not governed by rules of some sort, vague or precise; these rules regulated the beginning and the end of wars, as well as the manner in which they were conducted.
“Taken as a whole, the war practices of primitive peoples illustrate various types of international rules of war known at the present time: rules distinguishing types of enemies; rules determining the circumstances, formalities and authority for beginning and ending war; rules describing limitations of persons, time, place and methods of its conduct; and even rules outlawing war altogether.” (Quincy Wright, A study of war, 1942)
Moreover, many ancient texts such as the Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary.
– Difference between the jus in bello and the jus ad bellum: IHL, or jus in bello, is the law that governs the way in which warfare is conducted. IHL is purely humanitarian, seeking to limit the suffering caused. It is independent from questions about the justification or reasons for war, or its prevention, covered by jus ad bellum.
The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring par-ties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.
The jus ad bellum (law on the use of force) or jus contra bellum (law on the prevention of war) seeks to limit resort to force between States. Under the UN Charter, States must refrain from the threat or use of force against the territorial integrity or political independence of another state (Art. 2, para. 4). Exceptions to this principle are provided in case of self-defence or following a decision adopted by the UN Security Council under chapter VII of the UN Charter.
In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter. The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum.