04 September 2012 Written by  Bereket Bashura andDemelash Shiferaw

Concept and Purpose of International Humanitarian Law

War is usually characterized by outbursts of primitive raw violence. When States cannot or will not settle their disagreements or differences by means of peaceful discussion, weapons are suddenly made to speak. War inevitably results in immeasurable suffering among people and in severe damage to objects. War is by definition evil, as the Nuremberg Tribunal set forth in its judgment of the major war criminals of the Second World War. The United Nations Charter has also expressly dealt with the exceptional circumstances under which states are allowed to use force, and it in principle prohibits war and even prohibits the threat to use force against the territorial integrity or political independence of any State.

Yet, States continue to wage wars, and groups still take up weapons when they have lost hope of just treatment at the hands of the government. And it has also been laid down that no one would condemn a war waged, for example, by a small State protecting itself against an attack on its independence, “war of aggression” or people rebelling against a tyrannical regime.

International humanitarian law is mainly concerned with the fate of those who are not taking part in the conflict and sets forth a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or no longer participating in the hostilities and restrict the means and methods of warfare.

International humanitarian law is apart of international law, which is the body of rules governing relations between states. However what is special about international humanitarian law is that it applies to armed conflicts. It doesn’t regulate whether a state may actually use force as it is governed by an important but a distinct part of international law set out in the United Nations Charter.   

International humanitarian law, also called the law of armed conflict and previously known as the law of war, is a special branch of law governing situations of armed conflict, in a word war. International humanitarian law seeks to mitigate the effects of war, in that it limits the choices of means and methods of conducting military operations. This body of rules also obliges the belligerents to spare persons who do not or no longer participate in hostile actions in the course of conducting armed conflict.

 

War is, basically, prohibited under existing international law, with the exception of the right of every State to defend itself against attack. The fact that international humanitarian law deals with war does not mean that it lays open to doubt the general prohibition of war. And for this it suffices to see the Preamble to Additional Protocol I to the Geneva Conventions on the relationship between the prohibition of war and international humanitarian law. This document provides:

Proclaiming their earnest wish to see peace prevail among peoples, recalling that every State has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force…

Believing it necessary, nevertheless, to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application,

 

Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations…

The above statements in the preamble clearly denote that international humanitarian law quite simply stands mute on whether a state may or may not have recourse to the use of force. It does not itself prohibit war, rather it refers the question of the right to resort to force to the constitution of the international community of states as contained in the United Nations Charter. International humanitarian law acts on another plane. That is, it is applicable whenever an armed conflict actually breaks out, no matter for what reason. Only facts matter; the reasons for the fighting are of no interest to the rules of international humanitarian law to apply. In other words, international humanitarian law is ready to step in, whenever war breaks out, whether or not there is any justification for that war.

International humanitarian law, which is part of universal international law, has the purpose of ensuring peaceful relations between and/or among peoples. It makes a substantial contribution to the maintenance of peace in that it promotes humanity in time of war. It aims to prevent or at least to hinder mankind’s decline to a state of complete barbarity.

From this point of view, respect for international humanitarian law helps lay the foundations on which a peaceful settlement can be built once the conflict is over. The chances for a lasting peace are much better if a feeling of mutual trust can be maintained between the belligerents during the war. By respecting the basic rights and dignity of man, the belligerents help maintain that trust.