ASSIGNMENT

CARDINAL PRINCIPLES OF IINTERNATIONAL HUMANITARIAN LAW

Submitted to: Submitted by:

Dr. Sarita Klair Vikram Sharma

(Associate Professor of Law) (1020181927)

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

GHANDAL, SHIMLA, P.O. SHAKRAH, SUB-TEHSIL DHAMI
DISTRICT SHIMLA, HIMACHAL PRADESH-171014
Ph. 0177-2779802, 0177-2779803, Fax: 0177-2779802
Website: http://hpnlu.ac.in
 DECLARATION

The work embodied has been done by me Assignment titled “ CARDINAL PRINCIPLES
OF INTERNATIONAL HUMANITARIAN LAW ” and not submitted elsewhere for the
award of any other degree/certificate. All ideas and references have been duly acknowledged.

Vikram Sharma, (1020181927)

B.A.LL.B. Xth Semester
(Batch: 2018-19)

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 TABLE OF CONTENT

TITLE PAGE NO.

INTRODUCTION 4-6

PRINCIPLE OF DISTINCTION 6-7

PRINCIPLE OF HUMANITY 7

PRINCIPLE OF PROPORTIONALITY 8

PRINCIPLE OF MILITARY NECESSITY 9-10

PRINCIPLE OF UNNECESSARY 10-11

SUFFERING

CONCLUSION 11-12

BIBLIOGRAPHY 12

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INTRODUCTION

International Humanitarian Law (IHL) is a branch of International Law. It doesn't not deal with
legality of war but only deals with humanity during the war . It is a bundle of rules regarding
armed conflict to limit the effects of war or to help the sick or wounded. International
Humanitarian Law (IHL), also known as the Law of Armed Conflict or the Laws of War, is a
body of legal rules and principles that seeks to regulate the conduct of armed conflicts and to
protect individuals who are not or are no longer participating in hostilities. It is a branch of
international law that aims to mitigate the effects of armed conflicts and uphold certain
fundamental human values even in times of war. IHL establishes the legal framework that
governs the behavior of states, armed forces, and other parties to armed conflicts, with the
primary goal of minimizing human suffering.

The origins of IHL can be traced back to ancient civilizations and religious texts, where
principles of restraint and protection for the vulnerable during armed conflicts were recognized.
In the Indian epic Mahabharat approximately 400 BC, the laws of Manu incorporated provisions
outlawing the killing of surrendering adversaries who were no longer capable of fighting. These
included people who were aged, soldiers who were injured and lost their hand, leg and any other
body part.

However, the modern development of IHL can be attributed to the experiences and aftermath of
World War II and the subsequent conflicts. The horrific atrocities committed during the war,
including the Holocaust and the targeting of civilians, led to a renewed international effort to
codify and enforce rules to protect individuals during armed conflicts.

The main sources of IHL include international treaties, customary international law, and general
principles of law recognized by civilized nations. The four Geneva Conventions of 1949 and
their Additional Protocols form the core legal instruments of IHL. These treaties set out detailed
provisions regarding the protection of wounded and sick combatants, prisoners of war, and
civilians during armed conflicts.

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The fundamental principles of IHL are humanity, distinction, proportionality, and military
necessity. Humanity dictates that parties to the conflict must show compassion and respect for
the lives and dignity of individuals affected by armed conflicts. Distinction requires that parties
distinguish between combatants and civilians, and between military objectives and civilian
objects. It prohibits the deliberate targeting of civilians and civilian infrastructure.
Proportionality mandates that the harm caused to civilians and civilian objects during military
operations must not be excessive in relation to the anticipated military advantage. Finally,
military necessity permits only those acts that are required for the successful completion of
military operations and prohibits unnecessary suffering or harm.

IHL provides a range of protections for individuals affected by armed conflicts. It regulates the
means and methods of warfare, prohibiting the use of indiscriminate weapons and tactics, such
as weapons of mass destruction, landmines, and certain types of explosive weapons. It also
establishes rules for the treatment of prisoners of war, including humane treatment, protection
against torture and ill-treatment, and the right to fair trial. Additionally, IHL protects civilians by
requiring parties to the conflict to take all feasible precautions to minimize harm to civilians,
including the provision of medical care, food, and shelter.

The enforcement of IHL is a shared responsibility among states, international organizations, and
individuals. States have a duty to respect and ensure respect for IHL by incorporating its
provisions into their domestic legal systems and prosecuting individuals who violate its rules.
The International Criminal Court (ICC) plays a crucial role in holding individuals accountable
for war crimes, crimes against humanity, and genocide. Furthermore, the International
Committee of the Red Cross (ICRC) acts as a guardian of IHL, promoting its understanding and
compliance through dissemination, training, and advocacy.

While IHL has made significant contributions to mitigating the impact of armed conflicts,
challenges and violations persist. New technologies, such as drones and cyber warfare, raise
questions about the interpretation and application of existing rules. The issue of non-state armed
groups and their compliance with IHL remains a concern. Moreover, conflicts characterized by
asymmetric warfare and the deliberate targeting of civilians continue to pose significant
challenges to the effectiveness of IHL.

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Rules of international humanitarian law (IHL) try to regulate conflict to minimise human
suffering. IHL reflects a balance between the military necessity in a conflict and the needs for
humanitarian protection.

International humanitarian law is founded upon the following principles:

 The principle of distinction.

 The principle of humanity.
 The principle of proportionality.
 The principles of military necessity.
 The principle of unnecessary suffering.

These basic principles are included in the specific rules and norms of IHL. They also help the
interpretation of the law when the legal issues are unclear or controversial. Depending on the
issue, the balance between the principles and interest shifts. For example, during hostilities,
military necessity may limit the notion of humanity by allowing for destruction, but in other
situations such as the protection of the wounded and sick, the principle of humanity is at the
heart of the legal rules.

PRINCIPLE OF DISTINCTION

The principle of distinction underpins many rules of IHL and holds that only fighters may be
directly targeted. It is meant to protect civilians in armed conflict. The principle of distinction is
set out in Article 48 and 52 of Additional Protocol 1 to the Geneva Conventions 1
. The
Conventions define who is a combatant and a military object that can be lawfully attacked. Any
direct attack against a civilian or civilian object is not only a violation of IHL but also a grave
breach.

Direct attacks against civilians and/or civilian objects are categorised as war crimes.
Additionally, any weapon which does not allow for a distinction between civilians/civilian
objects and fighters/military objects is also prohibited under IHL. The principle is also a rule of
customary international law and therefore binding on all states.

1
Additional Protocol I to Geneva Convention 1977

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Targeting of dual-use objectives, or objectives that can be used for both military and civilian
application, demonstrates the vagueness of the definition of military objectives. Under the
definition of military objectives, a dual-use object can be a legitimate military target if it makes
an ‘effective contribution to military action’ and its destruction offers ‘a definite military
advantage’. The lawfulness of some targets is debated. For instance, during the war between
Israel and Hezbollah in Lebanon in 2006, it was questionable whether Beirut airport was a
military target because it was used to bring in supplies and weapons from neighboring countries.
Moreover, whether a power station could constitute a military objective as it contributes to a
party to the conflict’s effectiveness is also contested. For example, the targeting of al-Jalaa
Tower in Gaza may not be a legitimate military objective as a media facility. Even if it was used
as a tool of propaganda by Hamas, it may not be justified to attack a civilian use facility, and
such conflicts have to be judged on a case-by-case basis.

PRINCIPLE OF HUMANITY

The principle of humanity, and its absence during the battle of Solferino of 1859, was the central
notion that inspired the founder of the International Committee of the Red Cross (ICRC), Henry
Dunant. At the Hague Peace Conference of 18992, a Russian diplomat, Fyodor Fyodorovich
Martens, successfully introduced the “Marten’s clause” into the preamble of the Hague
Convention II, from which the principle of humanity is derived. It reads, “the inhabitants and the
belligerents remain under the protection and the rule of the principles of the law of nations, as
they result from the usages established among civilized peoples, from the laws of humanity and
the dictates of public conscience.”

The principle stipulates that all humans have the capacity and ability to show respect and care for
all, even their enemies.

IHL, the principles of which can be found in all major religions and cultures, sets out only basic
protections, but demonstrates some common sense of and respect for humanity even during
armed conflict. Modern IHL accepts that harm, destruction, and death can be lawful during

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Hague Conference 1899

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armed conflict. The law seeks to limit harm, and the principle of humanity is very much at the
heart of this ambition. Many rules of IHL are inspired by this notion, specifically those setting
out protections for the wounded and sick.

THE PRINCIPLE OF PROPORTIONALITY

The principle of proportionality limits potential harm to civilians: the principle demands that the
least amount of harm is caused to civilians, and when harm cannot be avoided, it needs to be
proportional to the military advantage.

The proportionality principle is most prevalent in Article 51(5)(b) of Additional Protocol I

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concerning the conduct of hostilities. This article prohibits attacks when the civilian harm would
be excessive in relation to the military advantage sought. This is an area of hostilities where we
often hear the term ‘collateral damage’.

The principle cannot be applied to override specific protections, or create exceptions to rules
where the text itself does not provide for one. As with the principle of necessity, the principle of
proportionality itself is to be found within the rules of IHL themselves. For example, direct
attacks against civilians are prohibited. A proportionality assessment is therefore not necessary
since any direct attack against even a single civilian would already be a clear violation of IHL.
Proportionality is only relevant when a military target is attacked.

An example of how difficult it is to gauge proportionality is indicated by the targeting of ISIS

fighters in Syria. On 4 October in Aleppo Governorate, ISIS fighters were targeted killing up to
25 people. Multiple sources reported that up to 13 of those killed were civilians, including nine
children while only between two and four ISIL fighters were killed. If 13 civilians were killed
and only between two and four ISIS fighters, does this indicate that the proportionality principle
was violated? Local sources also reported that ISIL fighters had forced citizens to gather to
watch the implementation of a punishment when the airstrike occurred. It is difficult to argue
whether or not the loss of civilian lives was proportionate to the military advantage of weakening
ISIL’s stranglehold. Again, conflicts have to be analyzed on a case-by-case basis due to

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Article 51(5)(b) Additional Protocol I 1977

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ambiguity in defining what constitutes as disproportionate. This is not an easy calculation and
the definition leads to more questions than it answers.

PRINCIPLE OF MILITARY NECESSITY

A dominant notion within the framework of IHL is military necessity, often the principle which
clashes most with humanitarian protection. Military necessity permits armed forces to engage in
conduct even when such action will result in destruction and harm. The concept of military
necessity acknowledges that under the laws of war, winning the war or battle is a legitimate
consideration.

However, the concept of military necessity does not give the armed forces the freedom to ignore
humanitarian considerations altogether and do what they want. The principle must be interpreted
in the context of specific prohibitions and in accordance with the other principles of IHL.

It is important to note that the rules of IHL include the principle. For example, Article 52 of
Addition Protocol I4 lists objects that can be lawfully targeted. However, the notion cannot be
applied to override specific protections or create exceptions to rules where the text itself does not
provide for one. The principle of military necessity is a concept in international humanitarian law
(IHL) that governs the conduct of armed conflicts. It recognizes that military forces may use
whatever measures are necessary and proportionate to achieve a legitimate military objective
while minimizing harm to civilians and civilian objects.

The principle of military necessity is based on the understanding that armed conflicts inevitably
involve violence and destruction. However, it imposes certain limitations to ensure that the use
of force remains within acceptable boundaries. According to this principle, military actions must
be directed towards achieving a legitimate military objective, such as the defeat of the enemy,
the capture of territory, or the destruction of military targets.

While the principle of military necessity allows for the use of force, it also requires that military
actions be proportionate. This means that the anticipated military advantage gained from an
attack must outweigh the expected harm to civilians or civilian objects. Military forces are
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Article 52 Additional Protocol I 1977

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expected to take feasible precautions to minimize civilian casualties and damage to civilian
infrastructure.

The principle of military necessity is closely linked to other principles of IHL, such as the
principle of distinction, which requires parties to an armed conflict to distinguish between
military targets and civilians, and the principle of proportionality, which prohibits attacks that
may be expected to cause excessive harm to civilians or civilian objects compared to the
anticipated military advantage.

It is important to note that the principle of military necessity does not justify or condone the
deliberate targeting of civilians or civilian objects. Such actions are prohibited by IHL and are
considered war crimes. The principle of military necessity aims to strike a balance between the
legitimate military objectives of armed forces and the protection of civilians and civilian
infrastructure during armed conflicts.

PRINCIPLE OF UNNECESSARY SUFFERING

IHL permits violence, but it prohibits the infliction of unnecessary suffering and superfluous
injury. The exact meaning of the terms, however, is unclear and the protection may as such be
limited. One rule that has been established based on this principle is the prohibition on the use of
blinding laser weapons. The principle of unnecessary suffering, also known as the principle of
superfluous injury or the principle of humanity, is a fundamental concept in international
humanitarian law (IHL). It prohibits the use of weapons, tactics, or methods of warfare that cause
excessive or unnecessary harm to combatants or civilians during armed conflicts.

The principle of unnecessary suffering recognizes the inherent humanity of warfare and seeks to
limit the infliction of unnecessary pain and suffering on individuals. It imposes a legal and moral
obligation on parties to an armed conflict to minimize the suffering and harm caused by military
actions.

Under this principle, combatants are prohibited from employing weapons or methods that are
specifically designed to cause unnecessary pain or suffering, or to cause injuries that are

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disproportionate to the military objective. This includes the use of weapons or tactics that cause
long-term or severe suffering, such as certain types of chemical or biological weapons.

The principle of unnecessary suffering is reflected in various international treaties and

conventions, including the Geneva Conventions of 1949 and their Additional Protocols. These
legal instruments prohibit the use of weapons, tactics, and methods that are deemed to cause
unnecessary suffering or to violate the principle of humanity.

In addition to regulating the means and methods of warfare, the principle of unnecessary
suffering also extends to the treatment of captured or wounded combatants. It prohibits torture,
cruel treatment, or inhumane practices against prisoners of war, detainees, or individuals in the
custody of a party to the conflict.

The principle of unnecessary suffering is closely related to the principles of military necessity
and proportionality. While military necessity allows for the use of force to achieve legitimate
military objectives, the principle of unnecessary suffering places limits on the methods and
means employed. Proportionality requires that the anticipated military advantage be balanced
against the expected harm to combatants and civilians.

By adhering to the principle of unnecessary suffering, parties to an armed conflict aim to uphold
basic human values and promote the humane treatment of individuals, even in the midst of
hostilities.

CONCLUSION

While the principles of IHL form a powerful regulatory force for conduct in modern conflicts,
there are issues with their application owing to their complexity and indeterminacy. It is arguable
that they fall short in creating more precise rules of warfare so that states and armed groups
cannot escape liability for violating them. While the principles are important rules of war which
endeavour to reduce human suffering and protect those most vulnerable in an armed conflict,
they also leave a lot to be desired. This is particularly so because ambiguous rules which are
difficult to interpret and apply to real-life scenarios are frequently undermined. A lawyers’ law,
as Kayes puts it, is hard to implement by not only armed groups but even advanced armies who

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then focus on circumventing or moulding them to fit their own ends. It is hoped that further
clarity is brought to these principles in order to better ensure and enhance compliance.

BIBLIOGRAPHY

1. STATUTE
 Hague Convention 1907
 Geneva Convention 1949
 ICRC
2. BOOK
 International Law by Malcolm M. Shaw
 International Humanitarian and Refugee law by Puneet Pathak
 International Humanitarian Law and Law of war by Wg Cdr (Retd) U.C. Jha
3. Websites
 https://www.diakonia.se/ihl/resources/international-humanitarian-law/basic-
principles-ihl/
 https://legalserviceindia.com/legal/article-7981-international-humanitarian-
law.html
 https://www.dlpforum.org/2021/08/12/cardinal-principles-of-ihl/
 https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/
International_Humanitarian_Law/IHL_SummaryGenevaConv.pdf

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