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A Brief Outline of International Humanitarian Law

Published online by Cambridge University Press:  13 January 2010

Stanislaw E. Nahlik
Stanislaw E. Nahlik*
Affiliation:
Emeritus Professor of the Jagellone University, Cracow
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Extract

The term “humanitarian law” applies to those rules of international law which aim to protect persons suffering from the evils of armed conflicts as well as, by extension, objects not directly serving military purposes.

There is therefore an essential difference between humanitarian law and “human rights”, for the latter do not apply only in time of armed conflict.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 24 , Issue 241 , August 1984 , pp. 187 - 226
Copyright
Copyright © International Committee of the Red Cross 1984

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References

1 The term was first used in the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 05 14, 1954 Google Scholar (text: United Nations, Treaty Series, vol. 249, pp. 216 ff).Google Scholar

2 Grotius, H. (de Groot): De jure belli ac pacis libri tres, 1st ed., Paris, 1625.Google Scholar

3 de Sassoferrato, Bartolo: Tractatus represaliarum, 1354Google Scholar; de Legnano, Giovanni: De bello, de represaliis et de duello, 1360.Google Scholar

4 The most important of which include: StAugustin, : De civitate Dei Google Scholar, Book XXII, chap. 6; St. Isidore of Seville: Etymologiarum vel originum libri viginti, Book II, chap. 1, and Book XVIII, chap. 1; St. Thomas of Aquino: Summa totius theologiae, Secunda Secundae, Quaestio XL; etc.

5 First and foremost in the mind of the Spanish Dominican, de Vitoria, Francisco: De Indis noviter repertis Google Scholar et De Indis sive De jure belli Hispanorum in barbaros (in Relectiones theologicae, read in 1532, published 1557), in Classics of International Law, Washington, 1917, esp. pp. 279 et seq.Google Scholar

6 Rousseau, J.-J.: Du contrat social, 1st ed. 1762 Google Scholar, Book 1, ch. 4 (translated into English: The Social Contract).

7 de Vattel, E.: Le droit des gens; ou Principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains, 1st ed. 1758, Book III, ch. VIII, para. 140, 145–147 and 158 Google Scholar (translated into English: The Law of Nations; or, Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns).

8 On this subject, see below, ch. IX.

9 For their present-day version, formally adopted at the Twentieth International Red Cross Conference, Vienna, October 1965, see Pictet, J.: The Principles of International Humanitarian Law, ICRC, Geneva, 1967 Google Scholar, which classifies them somewhat differently from the present writer.

10 This question was raised by some jurists after the Second World War. A categorical answer was given—along the lines of the above—by the former ICRC President, Huber, Max, in “Quelques considérations sur une révision éventuelle des Conventions de La Haye relatives à la guerre”, Revue Internationale de la Croix-Rouge, 07 1955, p. 433 ff.CrossRefGoogle Scholar

11 This was a revised version of a similar Convention of the same name adopted at the first Hague Conference in 1899.

12 According to its Article 89, this Convention was complementary to Chapter 2 of the Regulations annexed to the second 1899 Convention and to the fourth Convention of 1907; in practice, it replaced them.

13 Note that the traditional term “war”, which had still been used in the Conventions of 1949, has been replaced by the term “armed conflict” (see above, in our Introduction).

14 See International Military Tribunal, Trial of the Major War Criminals, Nuremberg, 14 11 1945 Google Scholar — 1 October 1946, Nuremberg 1947, vol. 1, pp. 253–254. See also Merle, M.: Le procès de Nuremberg et le châtiment des criminels de guerre, Paris, 1949, p. 118.Google Scholar

15 See Resolution 95 (I) adopted on 11 December 1946.

16 By 1 January 1984, 155 States were Parties to the 1949 Conventions.

17 By 1 January 1984, 38 States were Parties to Protocol I and 31 to Protocol II.

18 Coursier, H.: Course of Five Lessons on the Geneva Conventions, Geneva, 1963, p. 5 (italics in Coursier's text).Google Scholar

19 Convention No. II at the First and No. IV at the Second Hague Conference.

20 In 1899 the Third, in 1907 the Tenth Convention were adopted.

21 The second Convention, adopted in 1907; it was called the “Porter Convention” after the American diplomat who was the main inspiring force behind it.

22 See the League of Nations Covenant, Art. 12, para. 1; 13, para. 4; 15, para. 6–7; Pact to renounce war, signed in Paris on 27 August 1928, Art, 1–2; United Nations Charter, Art. 2, para. 3–4.

23 The only instruments of some importance in this field were: The Protocol of Geneva of 17 June 1925 for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare; and the Procès-verbal relative to the rules of submarine warfare, signed in London on 22 April 1930. Draft regulations relative to aerial warfare, drawn up by a commission of experts in The Hague in 1923, were never adopted.

24 Report of the International Law Commission to the United Nations General Assembly, included in the Yearbook of the International Law Commission, 1949 Google Scholar, para. 18.

25 Among the many resolutions based on Art. 1, para. 2 of the Charter, the most important is Resolution No 2625 (XXV), adopted on 24 October 1970 and containing a declaration on international law principles. The fifth of these principles refers to equal rights and self-determination of peoples.

26 Concerning the Conventions on the adaptation of the principles of the Geneva Convention to maritime warfare, see: Third 1899 Convention, Art. 11, and Tenth 1907 Convention, Art. 18.

27 Article 1, common to all four 1949 Conventions.

28 Article 2, para. 1.

29 Article 2, para. 3.

30 Art. 3, first sentence. For the rules in question, see below, Chapter XIII. (Author's italics).

31 See Art. 1 of Protocol I and Art. 1 of Protocol II in the text of the Draft additional Protocols to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 06 1973, pp. 3 and 33 respectively.Google Scholar

32 Protocol I, Art. 1, para. 4.

33 Protocol II, Art. 1, para. 1.

34 1864 Convention, Art. 6, para. 1.

35 1906 Convention, Art. 1, para. 1.

36 First 1929 Convention, Art. 1, para. 1.

37 Third 1899 Convention, Art. 8; Ternn 1907 Convention, Art. 11.

38 Tenth Convention of 1907: Art. 1 (1), 4 (1), 9 (2), 12, 13, 14, 15 and 16.

39 Second 1949 Convention, Art. 12 (1).

40 First 1949 Convention, Art. 13 (1) (Second Convention of 1949: same Article). As to the other provisions of that Article, see below: 2. Combatants—Prisoners of war.

41 1907 Regulations, Art. 1.

42 Ibid., Art. 2.

43 Second 1929 Convention, Art. 1.

44 Third 1949 Convention, Art. 4A, para. 2 and 3; Art. 5, para. 2.

45 Protocol I, Art. 43, para. 1 (author's emphasis).

46 Protocol I, Art. 44, para. 3.

47 As to the history of this problem, see Veuthey, M.: Guérilla et droit humanitaire, Geneva, 1976 (2nd ed., 1983)CrossRefGoogle Scholar and Nahlik, S. E.: “L'extension du statut de combattant à la lumière du Protocole I de Genève de 1977”, in Recueil des cours de l'Académie de droit international, vol. 164 (1979).Google Scholar

48 Protocol I, Art. 45, paras. 1 and 2.

49 Ibid. Art. 47, in particular para. 2 (c).

50 See for instance Rousseau, J.-J., The Social Contract Google Scholar, Book I, ch. 4.

51 “In this regard, see in particular the 1907 Regulations, Arts. 23 (g) and (h), 28, 43–47 and 50–53.

52 Fourth 1949 Convention, Art. 13. See also Articles 14–26 of the same Part II.

53 Fourth Convention of 1949, Art. 4 (1) (author's emphasis).

54 Protocol I, Art. 48 (“Basic Rule”).

55 Ibid., Art. 50 (2).

56 Ibid., Art 51 (1); see also para. 2 of the same article.

57 Ibid., Art. 50 (1).

58 Fourth 1949 Convention, Art. 16 (1); Protocol I, Arts. 75 (5) and 76.

59 Fourth 1949 Convention; Arts. 24, 50, 68 (4); Protocol I, Arts. 77–78.

60 Protocol I, Art. 8 (a) (author's emphasis).

61 Ibid., Art. 8 (b) (author's emphasis).

62 1864 Convention, Art. 2.

63 1906 Convention, Art. 9; First 1929 Convention, Art. 9 (1); First 1949 Convention, Art. 24.

64 First 1929 Convention, Art. 9 (2); First 1949 Convention, Art. 25.

65 1864 Convention, Art. 2; more specifically: 1906 Convention and First Convention of 1929, Art. 9 (1); First 1949 Convention, Art. 24.

66 Tenth 1907 Convention, Art. 10 (1); Second 1949 Convention, Art. 36.

67 1906 Convention, Art. 9 (1) in fine; Tenth 1907 Convention, Art. 10 (1) in fine; First 1929 Convention, Art. 9 (1) in fine; Third 1949 Convention, Art. 33.

68 Fourth 1949 Convention, Art. 20 (1) (author's emphasis).

69 Protocol I, Art. 8 (c).

70 Ibid., Art. 8 (d) (author's emphasis).

71 1906 Convention and First 1929 Convention, Art. 10.

72 Ibid., Art. 11; First 1949 Convention, Art. 27.

73 First 1949 Convention, Art. 26 (1); Protocol I, Art. 8 (c) (ii).

74 Protocol I, Art. 41 (1).

75 Ibid., Art. 42.

76 Ibid., Art. 71 (1) and (2).

77 Ibid., Art. 62 et seq.

78 Ibid., Art. 79.

79 During the DCHL, the characteristics of persons belonging to civilian defence organizations were the subject of long debate. Most of the participants felt they should be considered as exclusively civilian. However, in view of the observations made by certain other delegates, it was finally admitted that such organizations could in some cases also consist of members of the armed forces (see Protocol I, Art. 67), provided that they are assigned to such organizations on a permanent basis and never to military tasks.

80 1949 Conventions: First, Art. 17; Second, Art. 20; Third, Arts. 120–121; Fourth, Arts. 129–131.

81 Protocol I, Arts. 32–34 (very detailed).

82 1864 Convention, Art. 1 (1); later, see 1906 Convention and First 1929 Convention, Art. 6.

83 First 1949 Convention, Art. 19 (1).

84 Third 1899 Convention, Arts. 1–3; Tenth 1907 Convention, Arts. 1–3; Second 1949 Convention, Arts. 22 and 24–27. As to aircraft: First 1929 Convention, Art. 18 (1); First 1949 Convention, Art. 36 (1); Second 1949 Convention, Art. 39 (1).

85 Fourth 1949 Convention, Arts. 18 (1), 21, 22 (1).

86 Protocol I, Art. 8 (e). The passage quoted is followed by a list of numerous examples of types of units understood to be covered by this definition (author's emphasis).

87 Ibid., Art. 8 (f) to (j).

88 Ibid., Arts. 21–31.

89 1907 Regulations, Arts. 23, 25, 27 and 28.

90 Ibid., Arts. 46, 47 and 56.

91 Fourth 1949 Convention, e.g. Art. 53.

92 Protocol I, Art. 52, para. 1 (author's emphasis).

93 Protocol I, Art. 54, especially para. 2.

94 This appeal was the subject of Resolution 20 (IV) annexed to the Final Act of the DCHL.

95 Protocol I, Art. 53.

96 Ibid., Art. 56, especially para 1.

97 Ibid., Art. 55 (1).

98 First 1949 Convention, Art. 23.

99 Fourth 1949 Convention, Art. 15.

100 1907 Regulations, Art. 25.

101 Protocol I, Art. 59.

102 Ibid., Art. 60.

103 1864 Convention, Art. 7.

104 1906 Convention, Art. 18; First 1929 Convention, Art. 19 (1); First 1949 Convention, Art. 38 (1), etc.

105 Tenth 1907 Convention, Art. 5 (1); Second 1949 Convention, Art. 43 (1) (a).

106 Apart from previous documents, see: First 1949 Convention, Arts. 40–41; Second 1949 Convention, Art. 42; Protocol I, Annex I, Arts. 1–2.

107 Protocol I, Annex I, especially Arts. 5–13.

108 Ibid., Art. 15.

109 1906 Convention, Arts. 19–23; First 1929 Convention, Arts. 20–24; First 1949 Convention, Arts. 39–43; Second 1949 Convention, Arts. 43–45; Protocol I, Art. 18.

110 1864 Convention, Arts. 1–2.

111 See: 1906 Convention, Art. 6; First 1929 Convention, Arts. 1 (1), 6 and 9 (1); First 1949 Convention, Arts. 12 (1), 19 and 24 in fine; Second 1949 Convention, Arts. 12 (1), 22 and 36; Fourth 1949 Convention, Arts. 18 (1), 20 (1) and 21 (1); Protocol I, Arts. 10 (1), 12 (1), 15 (1), 21, 23 (1), 2 4, 4 8, 62 (1), 67 (1), 71 (2), 76 (1) and 77 (1) (in the latter two articles, the expression is slightly different, but the two essential words have remained unchanged). Only the word “protected” is used in Protocol I, Art. 79 (2) (referring to journalists on “dangerous missions”).

112 See for example: First 1929 Convention, Art. 1 (1); Second 1929 Convention, Art. 2 (2); First 1949 Convention, Art. 2 (2); Second 1949 Convention, Art. 12 (2); Protocol I, Arts. 10 (2) and 75 (1).

113 An expression often used along with another word. See for example: 1864 Convention, Art. 6; 1906 Convention, Art. 1 (1); Tenth 1907 Convention, Art. 11; First 1929 Convention, Arts. 1 (1) and 3 (1–2); First 1949 Convention, Art. 12(2); Second 1949 Convention, Art. 12 (2); Protocol I, Art. 10 (2); etc.

114 Protocol I, Art. 35 (1).

115 Ibid., Art. 59 (I).

116 1907 Regulations, Arts. 22 and 25 respectively. In the latter article, the phrase in question was added on the suggestion of Geneial Amourel, the French military delegate.

117 Protocol I, Art. 35 (2). This phrase was first used in the St. Petersburg Declaration of 29 November—11 December 1868, then repeated in the Declaration of Brussels of 27 August 1874, Art. 13 (c), in the Laws of War on Land, a Manual adopted by the Institute of International Law at Oxford on 9 September 1880, Art. 9 (a) and in the Regulations of the Hague of 1899 and 1907, Art. 23 (e).

118 Protocol I, Art. 51 (4–5) (in the chapter on protection of civilian population and civilians).

119 Protocol I, Art. 37, contains a detailed explanation of this notion (Arts. 38 and 39 contain examples which had hitherto been included in the 1907 Regulations, Art. 23 (f)).

120 Fourth 1949 Convention, Arts. 79–141.

121 Protocol I, Art. 75.

122 1949 Conventions: First, Second and Third, Art. 7; Fourth, Art. 8.

123 Protocol I, Art. 11 (2–3).

124 1906 Convention and First 1929 Convention, Art. 1 (1).

125 1949 Conventions, Art. 3 common to all four, para. 1 (1).

126 Protocol I, Art. 9 (1); Protocol II, Art. 2 (1).

127 Starting with de Vitoria, F., op cit., pp. 289–290.Google Scholar In contemporary literature, see, among others, de la Brière, Y.: “Evolution de la doctrine et de la pratique en matière de représailles”, in Recueil des cours de l'Académie de droit international, vol. 22 (1931), pp. 263 ffGoogle Scholar; Kalshoven, F.: Belligerent Reprisals, Leyden 1971 Google Scholar, passim, esp. p. 367; Nahlik, S. E.: “Le problème des représailles…”, in Revue générale de droit international public, 1978, No. 1, p. 130 ff.Google Scholar, and “Belligerent Reprisals…” in Law and Contemporary Problems, Duke University School of Law, 1978, p. 36 ff.Google Scholar

128 Second 1929 Convention, Art. 2 (3).

129 1949 conventions: First, Art. 46; Second, Art. 47; Third, Art. 13 (3); Fourth, Art. 33 (3).

130 Protocol I, Art. 20 (persons and objects protected in Part II dealing with Wounded, Sick and Shipwrecked), Art. 51 (6) (civilian population and civilians), Art. 52 (1) (civilian objects), Art. 53 (cultural objects and places of worship), Art. 54 (4) (objects indispensable to the survival of the civilian population), Art. 55 (2) (environment) and Art. 56 (4) (works and installations containing dangerous forces).

131 There were already some in the older treaties, e.g. the 1864 Convention, Art. 1 (2) and Art. 2; 1906 Convention, Art. 7; Tenth 1907 Convention, Art. 8; First 1929 Convention, Art. 7; First 1949 Convention, Art. 21; Second 1949 Convention, Art. 34; Fourth 1949 Convention, Art. 19 (1); Protocol I, numerous examples — see especially the categories of persons and units mentioned in Art. 8 and, for example, Art. 13 (1), Art. 15 (3), etc.

132 See however: 1906 Convention, Art. 12 (2) and Art. 15; First 1929 Convention, Art. 15 (2). The 1949 Conventions have no such provisions. Military necessity was next mentioned in the 1954 Hague Convention for the Protection of Cultural Property (Arts. 4 (2) and 11 (2) – (3). It is mentioned in Protocol I only in Arts 54 (5) (objects indispensable to the survival of the population), 62 (1) and 67 (4) (civil defence organizations), and 70 (3) (c) and 71 (relief action). Parts of Arts 52 (2) and 56 (2) bring however the military necessity clause to mind as well.

133 Protocol I, Art. 1 (2).

134 1949 Conventions, Art. 1; Protocol I, Art. 1 (1).

135 Protocol I, Art. 80.

136 1949 Conventions: First, Art. 45; Second, Art. 46.

137 Protocol I, Art. 82.

138 1949 Conventions: First, Art. 47; Second, Art. 48; Third, Art. 127; Fourth, Art. 144; Protocol I, Art. 83.

139 1949 Conventions: First, Second and Third, Art. 8; Fourth, Art. 9; Protocol I, Art. 5, esp. paras. 1–2. For certain specific attributions, see for example: Third 1949 Convention, Art. 126 (1–3); Fourth 1949 Convention, Art. 143 (1–4).

140 1949 Conventions: First, Second and Third, Art. 10; Fourth, Art. 11; Protocol I, Art. 5 (4).

141 1949 Conventions: First, Second and Third, Art. 9; Fourth, Art. 10.

142 Protocol I, Art. 81 (1); also Art. 5 (3–4).

143 Third 1949 Convention, Art. 126 (4); Fourth 1949 Convention, Art. 142 (3) and 143 (5).

144 Third 1949 Convention, Art. 123; Fourth 1949 Convention, Art. 140.

145 Third 1949 Convention, Art. 122 ff.; Fourth 1949 Convention, Arts. 136 ff.

146 Most clearly: Protocol I, Art. 81 (2–3).

147 For example: Third 1949 Convention, Art. 125; Fourth 1949 Convention, Art. 142; Protocol I, Art. 81 (4).

148 Fourth 1907 Convention, Art. 3 (the Second 1899 Convention did not contain such a provision).

149 Protocol I, Art. 91.

150 See above, Ch. X, para. 2.

151 See the complete records of the trial: Trial of the major war criminals before the Nuremberg Military Tribunals, Nuremberg, 1947–1949.

152 1906 Conventions, Arts. 27–28; Tenth 1907 Convention, Art. 21; First 1929 Convention, Arts. 28–30.

153 1949 Conventions: First, Arts. 49–52; Second, Arts. 50–53; Third, Arts. 129–132; Fourth, Arts. 146–149.

154 1949 Conventions: First, Arts. 53–54; Second, Arts. 44–45.

155 Protocol I, Arts. 85–91.

156 Ibid., in particular Art. 85, but also Art. 11 (4).

157 Ibid., Art. 9 (consisting of more than 100 lines).

158 1949 Conventions, Art. 3, common to the four.

159 See above, Chap. IV in fine.

160 Article 19 on dissemination, very brief.

161 See above, Chap. I.

162 Protocol II, Art. 1.

163 Ibid., Art. 2.

164 Ibid., Art. 3.

165 Ibid., Art. 4.

166 Ibid., Art. 5.

167 Ibid., Art. 6.

168 Ibid., Arts. 7–12.

169 Ibid., Art. 13.

170 Ibid., Art. 17.

171 Ibid., Arts. 14–16.

172 This text was not included in the original abridged version; it was introduced after a moving speech by the representative of the Holy See.

173 Protocol II, Art. 18.