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Fundamental principles of humanitarian lawLike Grotius (see p. 5 and Index), jurists and philosopherstook an interest in the regulation of conflicts well before the firstGeneva Convention of 1864 was adopted and developed.In the 18th century, Jean-Jacques Rousseau made a majorcontribution by formulating the following principle about thedevelopment of war between States:“War is in no way a relationship of man with man but arelationship between States, in which individuals are enemiesonly by accident; not as men, nor even as citizens, but assoldiers (.). Since the object of war is to destroy the enemyState, it is legitimate to kill the latter’s defenders as long as theyare carrying arms; but as soon as they lay them down andsurrender, they cease to be enemies or agents of the enemy,and again become mere men, and it is no longer legitimate totake their lives.”In 1899, Fyodor Martens laid down the following principle forcases not covered by humanitarian law: “(.) civilians andcombatants remain under the protection and authority of theprinciples of international law derived from establishedcustom, from the principles of humanity and from the dictatesof public conscience.”The above, known as the Martens clause, was alreadyconsidered a standard part of customary law when it wasincorporated in Article 1, paragraph 2, of Additional Protocol Iof 1977 (see Index).While Rousseau and Martens established principles ofhumanity, the authors of the St. Petersburg Declaration (seeQ4) formulated, both explicitly and implicitly, the principles ofdistinction, military necessity and prevention of unnecessarysuffering, as follows:“Considering: (.) That the only legitimate object which Statesshould endeavour to accomplish during war is to weaken themilitary forces of the enemy;That for this purpose it is sufficient to disable the greatestpossible number of men;That this object would be exceeded by the employment of armswhich uselessly aggravate the sufferings of disabled men, orrender their death inevitable.”The Additional Protocols of 1977 reaffirmed and elaborated onthese principles, in particular that of distinction: “(.) theParties to the conflict shall at all times distinguish between thecivilian population and combatants and between civilianobjects and military objectives and accordingly shall direct theiroperations only against military objectives.” (Art. 48, Protocol I;see also Art. 13, Protocol II).Finally, the underlying principle of proportionality seeks to strikea balance between two diverging interests, one dictated byconsiderations of military need and the other by requirementsof humanity when the rights or prohibitions are not absolute(see also p. 9).7

Elchin Mamedov/ICRC8“.to prevent the strong from oppressing the weak”3WHAT ARE THE ORIGINS OF INTERNATIONAL HUMANITARIAN LAW?To answer this question we have to askother questions.What law governed armed conflictsprior to the advent of contemporaryhumanitarian law?First there were unwritten rules based oncustoms that regulated armed conflicts.Then bilateral treaties (cartels) drafted invarying degrees of detail gradually cameinto force. The belligerents sometimesratified them after the fighting was over.There were also regulations which Statesissued to their troops (see The Lieber Codeopposite). The law then applicable inarmed conflicts was thus limited in bothtime and space in that it was valid for onlyone battle or specific conflict. The rules alsovaried depending on the period, place,morals and civilization.Who were the precursors ofcontemporary humanitarian law?Two men played an essential role inits creation: Henry Dunant and Guillaume-Henri Dufour (see p. 2). Dunant formulatedthe idea in A Memory of Solferino,published in 1862. On the strength of hisown experience of war, General Dufour lostno time in lending his active moral support,notably by chairing the 1864 DiplomaticConference.Dunant:“On certain special occasions, as, forexample, when princes of the military artbelonging to different nationalities meet (.)would it not be desirable that they shouldtake advantage of this sort of congress toformulate some international principle,sanctioned by a Convention and inviolate incharacter, which, once agreed upon andratified, might constitute the basis forsocieties for the relief of the wounded in thedifferent European countries?”Dufour (to Dunant):“We need to see, through examples asvivid as those you have reported, what theglory of the battlefield produces in terms oftorture and tears.”I N T E R N AT I O N A L H U M A N I TA R I A N L AWHow did the idea become a reality?The Swiss government, at the prompting ofthe five founding members of the ICRC (seep. 2), convened the 1864 DiplomaticConference, which was attended by 16States who adopted the Geneva Conventionfor the amelioration of the condition of thewounded in armies in the field.What innovations did thatConvention bring about?The 1864 Geneva Convention laid thefoundations for contemporary humanitarianlaw. It was chiefly characterized by: standing written rules of universal scopeto protect the victims of conflicts; its multilateral nature, open to all States; the obligation to extend care withoutdiscrimination to wounded and sickmilitary personnel; respect for and marking of medicalpersonnel, transports and equipmentusing an emblem (red cross on awhite background).

Humanitarian law prior to its codificationIt would be a mistake to claim that the founding of the RedCross in 1863, or the adoption of the first Geneva Conventionin 1864, marked the starting point of internationalhumanitarian law as we know it today. Just as there is nosociety of any sort that does not have its own set of rules, sothere has never been a war that did not have some vague orprecise rules covering the outbreak and end of hostilities, aswell as how they are conducted.“Taken as a whole, the war practices of primitive peoplesillustrate various types of international rules of war known atthe present time: rules distinguishing types of enemies; rulesdetermining the circumstances, formalities and authority forbeginning and ending war; rules describing limitations ofpersons, time, place and methods of its conduct; and evenrules outlawing war altogether.” (Quincy Wright)The first laws of war were proclaimed by major civilizationsseveral millennia before our era: “I establish these laws toprevent the strong from oppressing the weak.” (Hammurabi,King of Babylon)Many ancient texts such as the Mahabharata, the Bible and theKoran contain rules advocating respect for the adversary. Forinstance, the Viqayet – a text written towards the end of the13th century, at the height of the period in which the Arabsruled Spain – contains a veritable code for warfare. The 1864Convention, in the form of a multilateral treaty, thereforecodified and strengthened ancient, fragmentary and scatteredlaws and customs of war protecting the wounded and thosecaring for them (see opposite).The Lieber CodeFrom the beginning of warfare to the advent of contemporaryhumanitarian law, over 500 cartels, codes of conduct,covenants and other texts designed to regulate hostilities havebeen recorded. They include the Lieber Code (see Index),which came into force in April 1863 and is important in that itmarked the first attempt to codify the existing laws andcustoms of war. Unlike the first Geneva Convention (adopted ayear later), however, the Code did not have the status of atreaty as it was intended solely for Union soldiers fighting in theAmerican Civil War.9

ICRC10Families are deported from the Jewish ghetto in Warsaw during the Second World War.4WHAT TREATIES MAKE UP INTERNATIONAL HUMANITARIAN LAW?Initiated in the form of the first GenevaConvention of 1864, contemporaryhumanitarian law has evolved in stages,all too often after the events for which theywere sorely needed, to meet the evergrowing need for humanitarian aidresulting from developments in weaponryand new types of conflict. The followingare the main treaties in chronologicalorder of adoption:1864 Geneva Convention for theamelioration of the condition of thewounded in armies in the field1868 Declaration of St. Petersburg(prohibiting the use of certainprojectiles in wartime)1899 The Hague Conventions respectingthe laws and customs of war onland and the adaptation to maritimewarfare of the principles of the 1864Geneva Convention1906 Review and development of the1864 Geneva Convention1907 Review of The Hague Conventionsof 1899 and adoption of newConventions1925 Geneva Protocol for the prohibitionof the use in war of asphyxiating,poisonous or other gases and ofbacteriological methods of warfare1929 Two Geneva Conventions: Review and development of the1906 Geneva Convention Geneva Convention relating to thetreatment of prisoners of war (new)1949 Four Geneva Conventions:I Amelioration of the condition ofthe wounded and sick in armedforces in the fieldII Amelioration of the condition ofwounded, sick and shipwreckedmembers of armed forces at seaIII Treatment of prisoners of warIVProtection of civilian persons intime of war (new)1954 The Hague Convention for theprotection of cultural property in theI N T E R N AT I O N A L H U M A N I TA R I A N L AWevent of armed conflict1972 Convention on the prohibition of thedevelopment, production andstockpiling of bacteriological(biological) and toxic weapons andon their destruction1977 Two Protocols additional to the four1949 Geneva Conventions, whichstrengthen the protection of victimsof international (Protocol I) andnon-international (Protocol II)armed conflicts1980 Convention on prohibitions orrestrictions on the use of certainconventional weapons which maybe deemed to be excessivelyinjurious or to have indiscriminateeffects (CCW), which includes: the Protocol (I) on non-detectablefragments the Protocol (II) on prohibitions orrestrictions on the use of mines,booby traps and other devices the Protocol (III) on prohibitions

or restrictions on the use ofincendiary weapons1993 Convention on the prohibitionof the development, production,stockpiling and use of chemicalweapons and on their destruction1995 Protocol relating to blinding laserweapons (Protocol IV [new] to the1980 Convention)1996 Revised Protocol on prohibitions orrestrictions on the use of mines,booby traps and other devices(Protocol II [revised] to the 1980Convention)1997 Convention on the prohibition of theuse, stockpiling, production andtransfer of anti-personnel mines andon their destruction1998 Rome Statute of the InternationalCriminal Court1999 Protocol to the 1954 Convention oncultural property2000 Optional Protocol to the Conventionon the rights of the child on theinvolvement of children in armedconflict2001 Amendment to Article I of the CCWPrompted by eventsThis list clearly shows that some armed conflicts have had amore or less immediate impact on the development ofhumanitarian law. For example:The First World War (1914-1918) witnessed the use ofmethods of warfare that were, when not completely new, atleast deployed on an unprecedented scale. These includedpoison gas, the first aerial bombardments and the capture ofhundreds of thousands of prisoners of war. The treaties of1925 and 1929 were a response to those developments.The origins of the 1949 ConventionsIn 1874 a Diplomatic Conference, convenedin Brussels at the initiative of Tsar AlexanderII of Russia, adopted an InternationalDeclaration on the laws and customs of war.The text was not ratified, however, becausesome governments present were reluctant tobe bound by a treaty. Even so, the Brusselsdraft marked an important stage in thecodification of the laws of war.In 1934, the 15th International Conferenceof the Red Cross met in Tokyo andapproved the text of an InternationalThe Second World War (1939-1945) saw civilians and militarypersonnel killed in equal numbers, as against a ratio of 1:10 inthe First World War. In 1949 the international communityresponded to those tragic figures, and more particularly to theterrible effects the war had on civilians, by revising theConventions then in force and adopting a new instrument: theFourth Geneva Convention for the protection of civilians.Later, in 1977, the Additional Protocols were a response to theeffects in human terms of wars of national liberation, which the1949 Conventions only partially covered.Convention on the condition and protectionof civilians of enemy nationality who are onterritory belonging to or occupied by abelligerent, drafted by the ICRC. No actionwas taken on that text either, thegovernments refusing to convene adiplomatic conference to decide on itsadoption. As a result, the Tokyo draft wasnot applied during the Second World War,with the consequences we all know.The origins of the 1977 ProtocolsThe 1949 Geneva Conventions marked amajor advance in the development ofhumanitarian law. After decolonization,however, the new States found it difficult tobe bound by a set of rules which theythemselves had not helped to prepare.What is more, the treaty rules on theconduct of hostilities had not evolved sincethe Hague treaties of 1907. Since revisingthe Geneva Conventions might havejeopardized some of the advances made in1949, it was decided to strengthenprotection for the victims of armed conflictby adopting new texts in the form ofProtocols additional to the GenevaConventions (see Q9).The Geneva Conventions of 1949 and their Additional Protocols of 1977 contain almost 600 articles and are the maininstruments of IHL.11

Luc Chessex/ICRC12“.to work for the understanding and dissemination of knowledge of international humanitarian law.”5WHO IS BOUND BY THE GENEVA CONVENTIONS?Only States may become party tointernational treaties, and thus to the GenevaConventions and their Additional Protocols.However, all parties to an armed conflict –whether States or non-State actors – arebound by international humanitarian law.At the end of 2003, almost all the world’sStates – 191, to be precise – were party tothe Geneva Conventions. The fact that thetreaties are among those accepted by thegreatest number of countries testifies totheir universality. In the case of theAdditional Protocols, 161 States were partyto Protocol I and 156 to Protocol II by thesame date.Signature, ratification, accession, reservations, successionMultilateral treaties between States, such as the GenevaConventions and their Additional Protocols, require twoseparate procedures:a) signature followed by ratificationWhile signature does not bind a State, it does oblige the Stateto behave in a way which does not render the substance of thetreaty meaningless when the State subsequently ratifies andsolemnly undertakes to respect the treaty.b) accessionThis is the act whereby a State which did not sign the text of atreaty when it was adopted consents to be bound by it.Accession has the same implications as ratification.I N T E R N AT I O N A L H U M A N I TA R I A N L AWA newly independent State may, by means of a declaration ofsuccession, express the desire to remain bound by a treatywhich applied to its territory prior to independence. It may alsomake a declaration of provisional application of the treatieswhile examining them prior to accession or succession.Within the context of those procedures and under certainconditions, a State may make reservations in order to excludeor modify the legal effect of certain provisions of the treaty. Themain condition is that such reservations do not run counter toessential substantive elements of the treaty.Lastly, national liberation movements covered by Article 1,paragraph 4, of Protocol I may undertake to apply theConventions and the Protocol by following the specialprocedure set down in Article 96, paragraph 3, of Protocol I.

Didier Bregnard/ICRCWhose duty is it to spread knowledge of theConventions and Protocols?The ICRC and the task of spreading knowledge ofhumanitarian lawStates have a legal obligation to spread knowledge of theConventions and Protocols:“The High Contracting Parties undertake, in time of peace as intime of war, to disseminate the text of the present Conventionas widely as possible in their respective countries, and, inparticular, to include the study thereof in their programmes ofmilitary and, if possible, civil instruction, so that the principlesthereof may become known to the entire population, inparticular to the armed fighting forces, the medical personneland the chaplains.”(Arts. 47, 48, 127 and 144 of, respectively, GC I, II, III & IV)Under the Statutes of the International Red Cross and RedCrescent Movement, it is the task of the ICRC to:“(.) work for the understanding and dissemination ofknowledge of international humanitarian law applicable inarmed conflicts and to prepare any development thereof.”(Art. 5, para. 2g)“(.) [maintain close contact with National Societies] (.) inmatters of common concern, such as their preparation foraction in times of armed conflict, respect for and developmentand ratification of the Geneva Conventions, and thedissemination of the Fundamental Principles and internationalhumanitarian law.” (Art. 5, para. 4a)“The High Contracting Parties undertake, in time of peace as intime of armed conflict, to disseminate the Conventions and thisProtocol as widely as possible in their respective countries and,in particular, to include the study thereof in their programmes ofmilitary instruction and to encourage the study thereof by thecivilian population, so that those instruments may becomeknown to the armed forces and to the civilian population.”(Art. 83, Protocol I)“This Protocol shall be disseminated as widely as possible.”(Art. 19, Protocol II)13

Dominic Sansoni/ICRC14Jus in bello: to protect and assist victims of armed conflicts.61WHAT ARE JUS AD BELLUM AND JUS IN BELLO?The purpose of international humanitarianlaw is to limit the suffering caused by warby protecting and assisting its victims asfar as possible. The law thereforeaddresses the reality of a conflict withoutconsidering the reasons for or legality ofresorting to force. It regulates only thoseaspects of the conflict which are ofhumanitarian concern. It is what is knownas jus in bello (law in war). Its provisionsapply to the warring parties irrespective ofthe reasons for the conflict and whether ornot the cause upheld by either party is just.In the case of international armed conflict, itis often hard to determine which State isguilty of violating the United Nations Charter(see Q18). The application of humanitarianlaw does not involve the denunciation ofguilty parties as that would be bound toI N T E R N AT I O N A L H U M A N I TA R I A N L AWarousecontroversyandparalyseimplementation of the law, since eachadversary would claim to be a victim ofaggression. Moreover, IHL is intended toprotect war victims and their fundamentalrights, no matter to which party they belong.That is why jus in bello must remainindependent of jus ad bellum or jus contrabellum (law on the use of force or law onthe prevention of war).

Until the end of the First World War, resorting to armed forcewas regarded not as an illegal act but as an acceptable wayof settling differences.In 1919, the Covenant of the League of Nations and, in1928, the Treaty of Paris (Briand-Kellogg Pact) sought t

his book De jure belli ac pacis, Grotius listed rules which are among the firmest foundations of the law of war. Terminology The expressions international humanitarian law, law of armed conflicts and law of war may be regarded as equivalents. Inter