International Humanitarian Law: Background and Concepts

War has been regulated in all cultures, and all cultures have sought a certain equilibrium between
the use of force for military purposes, and the consideration of humanitarian factors. These
humanitarian considerations can be attributed to the human understanding that total war can only
lead to death for the parties and societies involved; participants in a conflict, although they are
committed to dying for a cause, want to win and survive.2 The humanitarian regulations of war
that result from this understanding have varied over time and place.
The following examples may be used at the facilitators’ discretion:
• The humanitarian regulations of the medieval Crusades applied only to knights and
crusaders. In contrast, 18th and 19th century regulations extended to all combatants and
civilian populations.
• In ancient China, Sun Tzu (5th century AD), author of The Art of War, prohibited killing an
unarmed enemy and obligated medical care and passage home for the wounded. He
also established that not all forms of combat are lawful, and he prohibited war without
quarter.
• Simon Bolivar signed a convention with Pablo Murillo, which never actually came into
force, during the South American campaigns of liberation from the Spanish. The
November 20, 1820 document established the regulation of war “in accordance with the
Rights of the Peoples, and the practices most liberal, wise and humane of the civilized
nations.3”
• Andrés Bello, the Chilean poet and scholar regarded as the intellectual father of South
America, published Principles of the Law of the Peoples in 1832. The volume dealt with
international law in times of war and peace and held that during hostilities, the ill
treatment of women, children, the elderly, the wounded and the sick was not lawful.4
Until the middle of the 19th century, the regulation of hostilities and the protection of civilian
populations and victims were sporadic and unsystematic. Regulation was based on unilateral
decisions made by nations or the parties in conflict. From 1850 on, the movement to regulate
and humanize armed conflict grew among an increasing number of nations.
Examples:
• In 1863 in the United States, Abraham Lincoln signed General Order 100, adopting the
Leiber Code—the first normative effort to regulate and humanize civil war and internal
conflict. The Order was later adopted as international law at the 1907 International
2
Freeman, Shirley, and Ormiston, Helen. “War and International Humanitarian Law”, Medicine, Conflict and Survival, Vol.
13, p. 166. London, 1997.
3
Art. 14 of the Convention, quoted by Indalecio Lievano in Bolivar, cited by Valencia Villa, op. cit. p. 27.
4
Ibid, pp. 20-33.INTERNATIONAL HUMANITARIAN LAW, INTERNATIONAL CRIMINAL LAW, INTERNATIONAL
Peace Conference in Copenhagen and became the basis for Hague Convention IV
respecting the laws and customs of war on land.
• The Battle of Solferino in 1859 left around 70,000 dead and 30,000 wounded. A Swiss
businessman, Henry Dunant, tended the wounded with the help of the local civilians and
the labor of local women. He related his experience in A Memory of Solferino. Horrified,
the Swiss government convoked the International Conference in Geneva in 1863. The
International Conference recommended the foundation of national relief societies with
governmental support, the neutrality of hospitals and leper colonies, the protection of
military health care workers, and the adoption of a distinctive symbol to identify protected
people and property. The First Geneva Convention on the care of the wounded and sick
dates from 1864 and by 1867 had been ratified by 12 nations.
• The Declaration of St. Petersburg of 1868, drafted under the reign of Czar Nicholas II,
established that the object of warfare–to debilitate enemy military forces–was exceeded
by the use of weapons that caused unnecessary suffering and the death of unarmed
people. The Declaration placed two limits on hostilities: the prohibition of aggression
towards civilians not involved in the conflict; and the prohibition of certain types of
weapons and ammunition that cause unnecessary damage and suffering. The Hague
Conventions of 1899 and 1907 recall the Declaration of St. Petersburg and prohibit the
use of certain types of weapons, in particular of suffocating poison gas projectiles.
In 1907, the modern law on armed conflicts began to develop around two intimately related
traditions: The Hague Regulations, which regulate the use of force and hostilities; and the
Geneva Regulations, which seek to alleviate combatants’ suffering and to protect civil
populations affected by conflict.
John Dugan offers this simple clarification of the differences between the Hague and Geneva
Regulations. The object of the Geneva Regulations is to protect people, guaranteeing that
those who no longer participate or have never participated in hostilities be treated with
humanity. The object of the Hague Regulations, on the other hand, is to restrict the freedom
of belligerents, prohibiting methods of war that cause unnecessary suffering.5
The Hague Regulations
The Hague Regulations are based on the principle of assuring the loyalty of combatants by
regulating hostilities and limiting forms of combat. Some of their more important instruments
are: the 1899 and 1907 Hague Conventions establishing the prohibition of certain types of
armaments, especially suffocating chemical gas projectiles and biological weapons; the 1954
Hague regulations protecting cultural patrimony; the 1980 United Nations Conference
prohibiting the use of excessively harmful conventional arms such as mines and booby-traps;
and the Chemical Weapons Convention adopted in Geneva in 1993.
A principal difficulty in the application of the Hague Regulations is that they recognize the
legitimacy of the use of force by insurgent groups. That is to say, a criminal insurrection is
converted into a civil war, and the rebels thus benefit from the laws of war. The force of
domestic law is then suspended, giving the war the status of an international conflict.
5 Dugard, John. “Bridging the gap between human rights and humanitarian law: The punishment of offenders.”
International Review of the Red Cross no 324, p.445-453, September 1, 1998. Online at:
http://www.redcross.org.au/ihl/articles/john_dugard_bridging_the_gap_bet.htmINTERNATIONAL HUMANITARIAN LAW, INTERNATIONAL CRIMINAL LAW, INTERNATIONAL
ANNEXINTERNATIONAL HUMANITARIAN LAW, INTERNATIONAL CRIMINAL LAW, INTERNATIONAL
The Geneva Regulations
These regulations represent humanitarian law properly speaking. Their object is to protect
non-combatant civilian populations and the victims of international and internal armed conflict.
They were elaborated after World War II upon the recognition of the atrocities of that war, and
the insufficiency of existing instruments to control those atrocities. In particular, the
international community saw the need to create specific instruments for the protection of
civilian populations.
In August 1949, representatives of 102 states signed the four Geneva Conventions: the first,
the Amelioration of the Condition of Wounded and Sick Members of the Armed Forces in the
Field; the second, the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea; the third, Relative to the Treatment of Prisoners of War;
and the fourth, Relative to the Protection of Civilian Persons in Time of War.
The development of warfare technologies and the course conflicts have taken in the decades
since the Second World War have determined the development of humanitarian law,
culminating at the end of the 20th century with the International Criminal Court. In effect, the
the character of war went from international to domestic. Domestic wars are not covered by
the Hague Conventions, which are only applicable to international wars. In response to this,
another International Conference was held in Geneva in 1977. 177 states attended and
passed two Additional Protocols: Protocol I, Relating to the Protection of Victims of
International Armed Conflicts; and Protocol II, Relating to the Protection of Victims of NonInternational Armed Conflicts.

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