International Humanitarian Law

By Thamil Venthan Ananthavimayagan

Thamil Venthan Ananthavinayagan holds an LL.M. from Maastricht University, The Netherlands and has submitted his PhD with the National University of Ireland, Galway. He is currently a lecturer for international law, international humanitarian law, and international criminal law at Griffith College, Dublin. Prior to joining Griffith College, he was a Fellow and research assistant at the Irish Centre for Human Rights in Galway, Ireland. Thamil has also studied civil/public and criminal law in Germany at the universities of Bonn and Marburg, with particular focus on international law.

Published February 2018

1. 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!

This article deals with the body of international law concerning the law of armed conflict. It is also referred to as ius in bello or the law of war. The terms international humanitarian law (IHL), law of armed conflict and law of war may be regarded as synonymous. The International Committee for the Red Cross (ICRC), international organizations, universities and states tend to opt for international humanitarian law. The two principle legal pillars of IHL are the "Hague Law," regulating weaponry and the choice of military targets, and the "Geneva Law," covering the treatment of prisoners of war, detainees, civilians, and humanitarian aid workers.

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. Given the long history of IHL means that there are many sources and examples which cannot be covered by this article. Researching IHL involves multiple issues and it is important to keep in mind that the nature of IHL has changed over time and continues to evolve.

In the next section, the article will discuss the historical antecedents and the gradual evolution of IHL.

2. History and Evolution of International Humanitarian Law

The regulation of war, contrary to popular assumption, is not just a Western concern. Chinese, Japanese, Indian and Arabic cultures have given birth to their respective traditions of rules of warfare. Christopher Greenwood notes, however, that “[l]aws of war have a long history (…), although it has been suggested that military practice in early times fell far short of existing theory, and that such rules of warfare as can be identified in early times have little similarity to modern international humanitarian law.” By way of example, the law of the Hittites foresaw a declaration of war and envisaged peace treaties. Moreover, the law of Hittites envisaged respect towards inhabitants of an enemy city which capitulated – in its concrete application, the war between Egypt and the Hittites in 1269 BC, for instance, was brought to an end by a peace treaty. As another example, Cyrus I, King of the Persians in the 7th century BC issued an order that wounded soldiers from the warring party, the Chaldeans, had to be treated like his own wounded soldiers.

The Indian epic Mahabharata, approx. 400 BC, and the Laws of Manu incorporated provisions outlawing the killing of surrendering adversaries who were no longer capable of fighting; the laws also forbade the use of certain means of warfare (i.e. poisoned or burning arrows); and detailed in their laws the protection of enemy property and prisoners of war. As another noteworthy example, Sumerians acknowledged that war was a state governed by the law, initiated with a declaration of war and brought to an end by a peace treaty. War was subject to specific rules, among them the immunity granted to enemy negotiators. Finally, Hammurabi, King of Babylon, 1.728-1.686 BC, wrote the 'Code of Hammurabi' bearing in mind the protection of the weak against oppression by the powerful and strong. The Code also foresaw that hostages shall be released on payment of a ransom.

The examples depict that the concern for the law for wars was inherent in different world cultures and the laws of wars are not such of Eurocentric nature. Jean Pictet, one of the most famous scholars and practitioners of IHL, tried to explain the cultural universalism of this branch of public international law:

[T]he modern world has placed its hopes in internationalism and therein no doubt its future lies. Now, in an international environment, man’s rights can only be on what is universal, on ideas capable of bringing together men of all races. [...] Similarity alone can be the basis for universality and, although men are different, human nature is the same over the world. International humanitarian law in particular has this universal vocation, since it applies to all men and countries. In formulating and perfecting this law, [...] the International Committee of the Red Cross has sought precisely this common ground and put forward rules acceptable to all because they are fully consistent with human nature. This is, moreover, what has ensured the strength and durability of these rules. However, today the uniformity of human psychological make-up and the universality of standards governing the behaviours of nations are recognized, and no longer is there belief in the supremacy of any one civilization: indeed, the plurality of cultures and the need to take an interest in them and study them in depth is recognized. This leads to an awareness that humanitarian principles are common to all human communities wherever they may be. When different customs, ethics and philosophies are gathered for comparison, and when they are melted down, their particularities eliminated and only what is general extracted, one is left with a pure substance which is the heritage of all mankind.

Meanwhile, despite this universal concern to limit the suffering caused by war, the regulation of the impact of war had been attempted numerous times. The 19th century, however, was the moment in history when a movement won impetus to codify the laws of war and when modern international humanitarian law was born. International lawyers refer to the Lieber Code (a document written to govern the conduct of the Union forces during the American Civil War) as the first example of the codification of the laws of war, named after Francis Lieber (1800-1872), a German-American professor of political science and law at Columbia University, New York, who prepared - on the behalf of President Lincoln - a manual, which was enacted in 1863 for the Union Army of the United States in the American Civil War (1861-1865). This Code was the first legal code with a single set of instructions for forces in the field, governing laws of war and customs of war.

The 157 articles of the Code were based on the ideas flowing from Enlightenment, as it, for example, stressed that only armed enemies should be attacked, that unarmed civilians and their property should be respected, and that prisoners and the wounded should be humanely treated. It is, however, widely considered that the year 1859 is the moment in human history when modern IHL was born. A merchant named Henry Dunant from Geneva, Switzerland, had witnessed the plight of 40,000 Austrian, French, and Italian soldiers during the Italian Wat for Unification, who were wounded on the battlefield of Solferino in 1859.

He collated and published his impressions in his book 'A Memory of Solferino’, offering his memories to worldwide reception. Eventually, the International Committee of the Red Cross (ICRC) was founded in Geneva in 1863 on his initiative. He had also triggered the adoption of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field in 1864. This Convention was the vehicle for the Geneva tradition of humanitarian law, as it ushered in the following humanitarian instruments: the 1907 Hague Convention, the 1949 Geneva Conventions and the 1977 Additional Protocols. The development of international humanitarian law, from now on, underwent a considerable evolution in different facets. In 1868, the Declaration of St. Petersburg, for example, was initiated by the Russian Government to convince major powers to outlaw the use of 'rifle shells'; these are small projectiles which exploded or caught fire on impact. These (exploding or inflammable) bullets caused far worse injuries than the ordinary bullets of the time (the effects of which were almost invariably disabling and frequently fatal).

The 1868 Declaration’s significance is not so much about the specific ban it had introduced, but is about the principles on which it is based. The Preamble to the Declaration was inspired by the ideas put forward by Rousseau in a statement and commitment to prohibit the employment of weapons or methods of warfare causing unnecessary suffering. IHL does recognize that one of legitimate objects of warfare is to disable and kill enemy combatants, but the use of weapons is refuted which causes additional suffering for no additional military gains. That principle enunciated in the Declaration of St. Petersburg remains important and echoes one of the roles of IHL: to limit unnecessary suffering. Building on this Declaration, the 1874 Brussels Declaration provided the first comprehensive code of the laws and customs of war. That Declaration was further developed at The Hague Peace Conferences of 1899 and 1907. The most important result was The Hague Regulations Concerning the Laws and Customs of War on Land.

Summarizing the events, the historical development of IHL can be encapsulated as follows:

3000 BC

Customs, Bilateral treaties, Customary law


Henry Dunant assists the wounded on the battlefield of Solferino


Lieber Code (Instructions for the Government of Armies of the United States in the Field)


Foundation of the ICRC and of the first National Societies


First Geneva Convention


Saint Petersburg Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles


Oxford Manual on The Laws of War on Land


Hague Conventions


Oxford Manual of the Laws of Naval War


Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare


First Geneva Convention on prisoners of war


Establishment of the International Military Tribunals in Nuremberg and Tokyo for the Prosecution and Punishment of the Major War Criminals


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


Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict


Protocols Additional to the Geneva Conventions

Protocol I:
applicable in international armed conflicts (including national liberation wars)
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
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


UN Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons


Paris Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction


Establishment of International Criminal Tribunals for the former Yugoslavia (ICTY), in The Hague, and Rwanda (ICTR) in Arusha


Protocols to the 1980 Weapons Convention: Protocol IV on Blinding Laser Weapons New Protocol II on Anti-Personnel Land Mines


Ottawa Convention Banning Anti-Personnel Land Mines


Adoption in Rome of the Statute of the International Criminal Court


Protocol II to the Convention on the Protection of Cultural Property


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)


Amendment to Article 1 of the Convention on Certain Conventional Weapons of 1980, in Order to Extend it to Non-International Armed Conflicts


Entry into force of the Statute of the International Criminal Court, on July 1 2002


Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention), 28 November 2003


Publication of the ICRC Study on Customary International Humanitarian Law


Protocol III additional to the Geneva Conventions relating to the Adoption of an Additional Distinctive Emblem


Convention on Cluster Munitions


3. Basic Principles

At a general level, IHL tries to find a balance between the two fundamental principles that are the principle of humanity on the one hand and the principle of military necessity on the other hand. Finding the balance between these two considerations is the role of what can loosely be described as the legislator; the states which negotiate and adopt conventions regarding IHL, or contribute, through their practice and opinio juris, to the formation of customary international law rules that apply to armed conflicts. To this end, the Preamble of Hague Convention IV, asserts:

According to the views of the High Contracting Parties, these provisions [of the present Convention], the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.

Acknowledging that IHL is a carful compromise between humanity and military necessity is replicated in the Krupp case before the US military tribunal:

[T]o claim that [the laws of war] can be wantonly – at the sole discretion of any one belligerent – disregarded when he considers his own situation to be critical, means nothing more or less than to abrogate the laws and customs of war. (..) It has been held by military tribunals that the plea of military necessity cannot be considered as a defense for the violation of rules which lay down absolute prohibitions (eg the rule prohibiting the killing of prisoners of war) and which provide no exception for those circumstances constituting military necessity.

Flowing from all this, art. 22 of The Hague Regulations (restated in art. 35.1 of Additional Protocol I) states that “[T]he right of belligerents to adopt means of injuring the enemy is not unlimited”. Total war is rejected: not all means that are useful in achieving the end of winning the war are allowed. Art. 23 (g) of The Hague Regulations makes an exception, though: “[I]t is forbidden ... To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” The principle of humanity is clearly stipulated in Common art. 3 to Geneva Conventions I-IV; in art. 12/12/13/27 of Geneva Conventions I-IV; and Article 4 of Additional Protocol II. The principle of humanity is the foundation for all of the detailed rules that are contained in the Geneva Conventions, which in effect attempt to apply the requirement of humane treatment to specific contexts and set out the operation of the obligation in more specific terms.

IHL is founded, furthermore, at a concrete level, upon the following principles:

Some of the main principles of IHL have been authoritatively restated by the International Court of Justice in the Nuclear Weapons Advisory Opinion: This underscores that IHL is governed by a body of legal prescriptions. This is so because

“[t]he right of belligerents to adopt means of injuring the enemy is not unlimited’ as stated in art. 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St. Petersburg Declaration had already condemned the use of weapons ‘which uselessly aggravate the suffering of disabled men or make their death inevitable’. The aforementioned Regulations relating to the laws and customs of war on land, annexed to The Hague Convention IV of 1907, prohibit the use of ‘arms, projectiles, or material calculated to cause unnecessary suffering’ art. 23.

4. Means and Methods 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 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

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:

5. Distinction Between International Armed and Non-International Armed Conflict

IHL finds application in two different situations: international armed conflicts and non-international armed conflicts. Essentially, all armed conflicts are either international or non-international armed conflicts, and the two categories have to be distinguished according to the parties involved rather than by the territorial scope of the conflict.

5.1. International Armed Conflict

The IHL relating to international armed conflicts applies according to GC I-IV, art. 2.1 “[t]o 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 expression “armed conflict” has gradually replaced the traditional expression of “war”. Jean Pictet expressed that

[t]he substitution of this much more general expression (‘armed conflict’) for the word ‘war’ was deliberate. One may argue almost endlessly about the legal definition 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.

In the Tadic case, the International Court for the former Yugoslavia the court affirmed that “[a]n armed conflict exists whenever there is a resort to armed force between States.” Other (international) courts referred and invoked this definition to determine the nature of the conflict. IHL, hence, begins to apply, when the first shot is fired.

The same situation applies in situations, according to GC I-IV, art. 2.2 of “[a]ll cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no resistance.” According to the International Law Commission, Articles on State Responsibility, more precisely art. 8 and commentary, a conflict between governmental forces and rebel forces within a single country emerges to such a status of an international character when and if the rebel forces are de facto agents of a third State. In this case the conduct of such agents, acts are attributable to the third State, and are subject to the rules of IHL relating to international armed conflicts.

The traditional approach sees international armed conflicts as a situation between two states; during the Diplomatic Conference of 1974-1977, ushering in the adoption of the two Additional Protocols of 1977, this traditional approach was questioned and “wars of national liberation” were also considered as international armed conflicts, as art. 1.4 of Protocol I, stipulates: “[a]rmed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.”

5.2. Non-International Armed Conflict

In this traditional approach, non-international armed conflicts were interior matters of states. The adoption of Common art 3. to the four Geneva Conventions of 1949, states decided to grant a minimum protection in cases of non-international armed conflicts:

[I]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

However, contrary to violence between the armed forces of States, not every act of violence within a State (even if directed at security forces) must be constituting an armed conflict. The threshold of violence needed for the IHL of non-international armed conflicts to find application is of higher notion for international armed conflicts. In this situation, Common art. 3 does not provide a clear determination for the situation of a non-international armed conflict to arise.

The Diplomatic Conference stressed the need for a comprehensive definition of the notion of non-international armed conflict which was reaffirmed and dealt with accordingly in Article 1 of Additional Protocol II 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.

This restrictive approach finds application only in relation to Protocol II and not to Common art. 3 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.

Current scholarship tends towards the reduction between situations 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. 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.

5.3. Other Situations

IHL cannot be applied in the situations of internal disturbances, tensions et al.; this means situations, where a certain degree of violence of non-international armed conflicts has not been met. To this end, art. 1.2 of Additional Protocol II, sets out: “[T]his Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” The non-application does not mean that violence is operating within a legal vacuum. Rules of human rights and other domestic laws apply; they are might be even more restrictive, especially regarding the use of force and detention of enemies, whereas IHL gives states more room to navigate in relation to the use of force and detention.

6. The Role of the International Committee of the Red Cross (ICRC)

Henry Dunant, following his experiences from the battlefield of Solferino, formulated proposals to improve the situation of the wounded and sick. One of his proposals foresaw the creation of National Red Cross Societies, with the aim of assigning them the task of caring for the wounded and sick. For giving effect to his proposals, he formed a committee of five prominent persons from Geneva, comprising of himself, Gustave Moynier, a lawyer, General Guillaume-Henri Dufour, a soldier, and two physicians, Louis Appia and Théodore Maunoir.

This initial Committee became the ICRC, the ‘Committee of Geneva’. ICRC’s first matter of action was to request the Swiss Federal Government to convene a diplomatic conference in order to adopt an international convention on the protection of the wounded and sick soldiers. Shortly after, the Conference of Geneva adopted the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. With two world wars following, the role and importance of the ICRC grew to support, ameliorate and protect civilians, wounded/sick and prisoners of war. The ICRC increased its efforts and lobbied state governments to introduce international rules, i.e. Hague Conventions to governing the way wars were conducted. By the end of World War I, the ICRC urged for an end to the use of chemical warfare. Discussions and a treaty that followed outlawed the use of chemical weapons. The ICRC continued its efforts, in particular after World War I, to expand the protection of war victims, entering in the new Geneva Convention that covered prisoners of war. However, the ICRC was unable to persuade state governments to adopt an international agreement to protect civilians before the outbreak of World War II, rendering tens millions of people without specific protection.

In its legal sense, the ICRC holds a hybrid status. While it is constituted as an association under Swiss private law, it is equipped with international rights and duties under treaty law - making it an international actor and also a subject of public international law. This means the ICRC holds rights and obligations on the international plane as it holds international legal personality. In art. 5 of the Statute of the International of the Red Cross and the Red Crescent Movement the ICRC enunciates its general statement about the ICRC’s mission:

1. The International Committee, founded in Geneva in 1863 and formally recognized in the Geneva Conventions and by International Conferences of the Red Cross, is an independent humanitarian organization having a status of its own. It co-opts its members from among Swiss citizens.
2. The role of the International Committee, in accordance with its Statutes, is in particular:
a) to maintain and disseminate the Fundamental Principles of the Movement, namely humanity, impartiality, neutrality, independence, voluntary service, unity and universality;
b) to recognize any newly established or reconstituted National Society, which fulfils the conditions for recognition set out in Article 4, and to notify other National Societies of such recognition;
c) to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law;
d) to endeavour at all times—as a neutral institution whose humanitarian work is carried out particularly in time of international and other armed conflicts or internal strife—to ensure the protection of and assistance to military and civilian victims of such events and of their direct results;
e) to ensure the operation of the Central Tracing Agency as provided in the Geneva Conventions;
f) to contribute, in anticipation of armed conflicts, to the training of medical personnel and the preparation of medical equipment, in cooperation with the National Societies, the military and civilian medical services and other competent authorities;
g) to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof;
h) to carry out mandates entrusted to it by the International Conference.
3. The International Committee may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution.
4. a) It shall maintain close contact with National Societies. In agreement with them, it shall cooperate in matters of common concern, such as their preparation for action in times of armed conflict, respect for and development and ratification of the Geneva Conventions, and the dissemination of the Fundamental Principles and international humanitarian law.
b) In situations foreseen in paragraph 2 d) of this Article and requiring coordinated assistance from National Societies of other countries, the International Committee, in cooperation with the National Society of the country or countries concerned, shall coordinate such assistance in accordance with the agreements concluded with the Federation.

The ICRC has, since its inception, followed fundamental principles, which were first formulated in their modern wording at the Vienna Conference of the Red Cross and Crescent Movement in 1965. These principles are set out in the preamble to the Statutes of the Red Cross and Red Crescent Movement. The seven general principles are formulated as follows:

Reaffirms that, in pursuing its mission, the Movement shall be guided by its Fundamental Principles, which are:

Humanity - The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavors, in its international and national capacity, to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, cooperation and lasting peace amongst all peoples.

Impartiality - It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavors to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.

Neutrality - In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.

Independence - The Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement. Voluntary Service It is a voluntary relief movement not prompted in any manner by desire for gain.

Unity - There can be only one Red Cross or one Red Crescent Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory.

Universality - The International Red Cross and Red Crescent Movement, in which all Societies have equal status and share equal responsibilities and duties in helping each other, is worldwide.

Hence, the main tasks of the ICRC are, first, the protection of persons in an armed conflict, namely wounded and sick soldiers, prisoners of war and civilians; second, in particular the protection of detained protected persons, namely through visit programs; third, restoration of family links; fourth, development, interpretation and dissemination of IHL; and fifth, the exercise of a series of rights and duties as provided for in the Conventions, for example the nomination of physicians in the Mixed Medical Commissions.

Finally, the ICRC’s action is not restricted to its duties described in the conventions. The tasks can be either conventional, and, by doing so, the ICRC helps in the implementation of legal texts. Otherwise they are extra-conventional, in cases where the ICRC proposes a change in the law through the adoption of a new convention. Actions can have also a hybrid nature. for example, when the actions undertaken by the ICRC are blending conventional and extra-conventional actions, (when attempting to ameliorate the status of persons protected by offering solutions under its right of humanitarian initiative). To the extent that the ICRC remains within the boundaries of humanitarian action, it may propose any practical improvement or solution to a humanitarian problem arising during an armed conflict.

To this end, the ICRC can propose relief action to a besieged place, despite the fact that this action that goes beyond what the Conventions allow; vice versa, any party to a conflict can profit from the expertise and resources (material, legal or practical) of the ICRC, which can be contacted at any time in to reduce the human suffering in a conflict. Relief actions, tracing agencies, prisoner’s visits, transmission of personal news and parcels and diplomatic demarches urging respect for IHL are just examples of actions. A non-exhaustive list of examples may be depicted here: 91 million individual parcels were transmitted to prisoners of war during World War II. These parcels, which were filled with foodstuffs and other necessities, saved the lives of a great many of their recipients; during World War II, a large part of the Greek civilian population, which was living in conditions of starvation, was only able to survive with the help of assistance delivered through the Swedish Red Cross, in cooperation with the ICRC; during the Israeli-Arab war of 1973, delegates of the ICRC crossed the Jordan River on foot in order to transmit personal messages to the other side of the front. Kolb and Hyde write that “[T]he exemplary humanitarian nature of this work speaks for itself, and further exposition is unnecessary.”

7. Implementation and Enforcement of the Law

The implementation and enforcement of international law in general and IHL is a problematic field of discussion. The principle of sovereign equality of states, enshrined in art. 2.1, art. 2.4 of the United Nations Hence, enforcement of international law is decentralized and poses significant challenges for IHL. Implementation and enforcement of IHL is often voluntary nature, no compulsory means for the settlement of disputes or for ensuring enforcement of IHL exist. Duties do exist under IHL, but sanctions for the failure to abide by the duties are sparse.

However, the proliferation of international criminal courts and tribunals, such as the International Criminal Tribunal for the Former Yugoslavia as well as those of the International Criminal Tribunal for Rwanda and the International Criminal Court aim to ensure better adherence to the laws of armed conflict. IHL is no more a field of international law that can afford to be left without any consequences in case of breaches, no means of enforcement or accountability, but rather as a dynamic source of obligations for both States and individuals in their conduct in armed conflicts, both international and non-international. Attempts to implement and enforce IHL must be achieved through measures in wartime and peacetime.

Australia can be used as an example for the implementation of IHL in peacetime: here the Geneva Conventions Act 1957 was implemented, which gives domestic legal effect to the Geneva Conventions. Moreover, in addition to enabling domestic legislation domestically, parties to the Conventions and Protocols are obliged to ensure that IHL is disseminated through the population through the dissemination of military manuals which outline the laws of armed conflict applicable to that State; integration of IHL into the rules of engagement; and the provision of regular training in IHL for the armed forces. IHL instruction shall also be given to police forces of a State. Also, IHL must be disseminated as widely as possible throughout civil society. This can be fulfilled through the teaching of IHL in universities and schools, as well as through public education programs.

In time of war, the need to respect and ensure respect for IHL is of utmost importance. This principle is expressed in the Geneva Conventions in Common art. 1. Common Article 1 provides that parties to the Convention ‘undertake to respect and to ensure respect for the present Convention in all circumstances. The ICRC, as outlined earlier, plays an important role here. Another measure to ensure implementation and enforcement of IHL is through the International Humanitarian Fact-Finding Commission. This Commission was created in accordance with art. 90 of Protocol I, and was officially constituted in 1991. The Commission is a permanent international body tasked with investigating allegations of grave breaches and other serious violations of IHL. Seventy-two States have accepted the competence of the Commission, which comprises 15 individuals elected by States. As of April 2012, the Commission is yet to be called on.

Finally, two mechanisms exist to hold states and individuals accountable for IHL violations: on the one hand, the rules on State responsibility (for State accountability) and international criminal law (for individual accountability). The rules on State responsibility contain some provisions relevant to IHL, namely that a State is strictly responsible for all acts committed by members of its armed forces. For example, reprisals against protected persons and goods, are prohibited. Under the law of State responsibility, there is a general obligation to pay compensation.

International criminal law then again criminalizes categories of acts known as crimes against humanity and genocide. Crimes against humanity are understood as crimes committed systematically, in accordance with an agreed plan, by either a State or organized group. The idea of crimes against humanity emerged from the Nuremberg and Tokyo Trials convened after the Second World War and have evolved to be part of customary international law. Emphasizing the need to suppress grave breaches, IHL urges parties to the Conventions to enact legislation to punish such breaches, identify and track down possible perpetrators and bring them before one’s own State courts - otherwise, to extradite them to other states’ courts. The principle of universal jurisdiction allows any State to bring to trial a person or persons accused of committing certain crimes against international law, regardless of the location of commission of the crime, or the nationality of the victim or perpetrator.

With the system of universal jurisdiction, no violation of IHL shall remain in impunity. Therefore, under articles 50, 51, 130 and 147 of the Geneva Conventions I, II, III IV and article 85 of Protocol I, a State is obliged to punish grave breaches of the Conventions, even if the State is not a party to the Conventions, the offender(s) or victim(s) is not that State’s national, and the offence is committed outside that State’s territorial jurisdiction, see Art. 49 of Geneva Convention I and art. 50 of Geneva Convention II, and Art. 129 of Geneva Convention III and finally art. 146 of Geneva Convention IV. If a State is unwilling to prosecute an offender within its territory, the alleged offender is to be handed out to any Party to the Convention who can make out a prima facie case.

In any case, global politics is an impeding factor in the implementation and enforcement of IHL. Because it is in the Security Council or other international fora, or in the domestic setting, consensus-building efforts and political mediation around accountability and enforcement is necessary. The significant progress through the development of international norms, legal frameworks and institutions for human rights and humanitarian protection demonstrates, does not mean that enforcement comes automatic. Persistent efforts by individuals, civil society organizations, states and the international community is of paramount importance to ensure that commonly held norms are enforced in practice.

8. Contemporary Challenges

There are a number of challenges with which IHL is concerned with, namely cyberwarfare, Direct Participation in Hostilities, Multinational Forces, Private Military and Security Companies, Humanitarian Access and Assistance, Law of Occupation and Terrorism. The ICRC provides an in-depth discussion on these issues here.

9. R2P (Responsibility to Protect)

The concept of R2P underwent a considerable evolution over time: having been without any legal foundation, the United Kingdom relied on the idea of humanitarian intervention during the First Gulf War to intervene in Iraq and referred to customary international practice, citing example from Tanzania’s intervention in Uganda in 1979, Vietnam’s intervention in Cambodia in 1975 and, finally, India’s intervention in Bangladesh in 1971. The very same principle was relied upon in 1999, when NATO allies intervened in Kosovo without United Nations Security Council mandate under Chapter VII to prevent ethnic cleansing by Serb forces, an incident in history that is of critical academic nature and penetrates the discussion into contemporary times, for more information here. But this very incident proved to be the stepping stone for the elaboration and invention of the R2P concept.

In light of the tragedies in Rwanda, the Balkans and specifically Kosovo in the 1990s, the international community ignited the discussion if, how and when the world community can intervene in moments when the human rights of citizens of a particular country are grossly and systematically violated. The crucial question was if States have unconditional sovereignty over their own affairs or whether the international community has the right, or even the obligation, to intervene in a country for humanitarian purposes.

With the Millennium Report of 2000, the United Nations Secretary-General Kofi Annan, recalled the Security Council’s failures to act decisively in Rwanda and the former Yugoslavia, and, in this context uttered: "[I]f humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica, to gross and systematic violation of human rights that offend every precept of our common humanity?"

In late 2001, the Canadian government created the International Commission on Intervention and State Sovereignty (ICISS), which was followed by the release of its report on Responsibility to Protect, advocating that state sovereignty is a responsibility, and that the international community could, as a means of last resort, use military intervention to avert “mass atrocities”. The African Union (AU) later endorsed the idea and put in its founding charter of 2005 with art. 4 (h) of the Constitutive Act which states that it is the “right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” In 2005, as the United Nations debated major reforms of its human rights system, the idea of committing to an international Responsibility to Protect gained support from many governments and civil society organizations from all regions. Southern leadership at the 2005 World Summit was decisive to this end. Argentina, Chile, Guatemala, Mexico, Rwanda, and South Africa, were some of the influential governments insisting on a meaningful commitment to the Responsibility to Protect.

Paragraphs 138-139 of the World Summit Outcome Document, Heads of State and government agreed to the following:

[T]hat each individual state has the primary responsibility to protect its populations from genocide, war crimes, crimes against humanity and ethnic cleansing. And it is also a responsibility for prevention of these crime

That the international community should encourage or assist states to exercise this responsibility.

The international community has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to help protect populations threatened by these crimes. When a state manifestly fails in its protection responsibilities, and peaceful means are inadequate, the international community must take stronger measures, including collective use of force authorized by the Security Council under Chapter VII.

The first time the Security Council made official reference to the responsibility to protect was in April 2006, in resolution 1674 on the protection of civilians in armed conflict. The Security Council referred to that resolution in August 2006, when passing resolution 1706 authorizing the deployment of UN peacekeeping troops to Darfur, Sudan. Recently, the responsibility to protect featured prominently in a number of resolutions adopted by the Security Council. The more prominent and controversial application of R2P, however, was in the case of Libya 2011. Following a range of earlier attempts to implement peaceful measures, such as diplomatic incentives, asset freezes, arms embargo, and ICC referral, the UN Security Council adopted Resolution 1973 on 17 March 2011, approving a no-fly-zone, calling for an immediate cease-fire and tightening sanctions on the Muammar Qaddafi regime in Libya. This was a follow-up to Resolution 1970, which first called upon Libya’s “responsibility to protect” by referring the situation to the ICC and imposing initial financial sanctions as well as an arms embargo. Language from Resolution 1973 called the enforcement of a no-fly zone and for “all necessary measures to protect civilians and civilian populated areas under threat or attack…. while excluding a foreign occupation force of any form.” The Resolution condemned the Libyan government for failing to comply with international law and for allowing gross violations of human rights and attacks that may amount to crimes against humanity. The repercussions and ramifications of the intervention are felt until today and is critically discussed.

Moreover, in response to the escalating, post-election violence against the population of Côte d’Ivoire, the UN Security Council unanimously adopted Resolution 1975 on 30 March 2011. The Resolution condemned the gross human rights violations committed by supporters of both Gbagbo and President Ouattara stating, “the attacks currently taking place in Côte d’Ivoire against the civilian population could amount to crimes against humanity.” The resolution cited “the primary responsibility of each State to protect civilians,” called for the immediate transfer of power to Ouattara, and reaffirmed the mandate of the UN Operation in Côte d’Ivoire (UNOCI) to “use all necessary means to protect life and property.” Resolution 1975 mandated targeted sanctions against Gbagbo and his close supporters, while reaffirming the UN mandate in Côte d’Ivoire to protect civilians and the use of all necessary means to protect them, while preventing the use of heavy weapons. In an effort to protect the people of Côte d’Ivoire from further atrocities, a military operation began on 4 April 2011 and Gbagbo’s hold on power ended on 11 April when he was arrested by Ouattara’s forces after days of fighting with UNOCI and the French military.

Meanwhile, the discussions revolving the proper application of R2P continue at the international level through informal discussion at the General Assembly, resulting in the latest document in 2016 which can be found here. However, why and how the application of R2P was never a matter of consideration in the wars in Syria and Yemen, is a matter of political choice.

For more information on R2P here.

10. The Relationship Between International Human Rights Law and Humanitarian Law

Traditionally, IHL and IHRL have been regarded as two specific branches of international law. Both do concern the common humanist ideals, i.e. dignity and integrity of the human being. They also cover the same rights and freedoms, such as the right to life, freedom from torture, right to health, a number of family rights et al. There are, however, also differences with regards to their origin, the subjects of obligations, the nature and scope of obligations, the institutions competent to determine violations, the period of application, the scope of beneficiaries, the locus of application, the range of rights protected, and the source of the obligations. Human rights laws are supposed to protect persons from abuse of powers by the state, enshrined in constitutional law. Humanitarian law developed in its relation between States, enshrined in international law.

However, recent developments in international law, respective national jurisprudence and national laws led to the recognition that the branches of international law overlap substantially in practice. The concurrent application of these two bodies of law in certain contexts has been expressly recognized by various international courts and tribunals. By way of example, in the Advisory Opinion on the Legality of the Wall, The International Court of Justice opinioned as follows:

[S]ome rights may be exclusively matters of International Humanitarian Law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. Some examples of rights which may be exclusively matters of humanitarian law, for instance are those of prisoners of war. Rights which are typically matters of human rights law are such rights as freedom of expression or the right of assembly. Some rights which may be matters of both bodies of law are such rights as the right to life, rights of persons deprived of liberty and the prohibition against torture and other cruel, inhuman or degrading treatment or punishment.

Henceforth, in case of an overlapping between the two bodies of law, the principles that govern their relationship are the principles of complementarity and lex specialis. While the principle of complementarity opens the avenue for cross-fertilization and mutual strengthening of the two bodies of law, lex specialis is a useful principle to resolve between two conflicting norms. IHRL provides more procedural safeguards for an individual’s protection, more than IHL entails, with due regard to an individual remedy, the right to an independent and impartial investigation and to individual reparation. All these procedural rights cannot be transferred in their totality to IHL, but given the nature of each body of law, the increasing awareness of the application of human rights in armed conflict and the increasing transparency and accountability in military operations, all have an influence on the understanding of certain rights under IHL. Ruona Iguyovwe elucidates:

[A]s both norms share the common humanist ideals of the protection of health, life and dignity of the individual, and as both strive to protect individuals from abuses of state power, this will lead to application coextensive with the projection of that power. As has been suggested, while the exact contours of such application may not yet be settled, the traditional principles of good faith and reasonableness in the circumstances provide ample guidance for shaping those contours.

11. Key Documents

Geneva Conventions of 1949 and Additional Protocols, their Commentaries and other relevant key treaties

12. Useful Links



Others databases, online portals, and other research hubs:

IHL articles:

13. Important Case Law:

Can be found at:

More Specifically:

14. Bibliography