RUDIMENTS

OF

INTERNATIONAL HUMANITARIAN LAW

Henrietta Newton Martin(B.Com, LLB (Gold Medalist), LLM(Gold Medalist),MMS(HR) etc)

Published in 2014 by ACE,UK

Copyright ©  The author as named on the book cover.

First Edition

The author has asserted their moral right under the Copyright, Designs and Patents Act, 1988, to be identifiedas the author of this work.

All Rights reserved. No part of this publication may be reproduced, copied, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written consent of the copyright holder, nor be otherwise circulated in any form of binding or cover other than that in which it is published and without a similar condition being imposed on the subsequent purchaser.

A CIP catalogue record for this title is available from the British Library.

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Dedicated to my family Newtons and Martins and above all to the

most benevolent Almighty God, Raboha Jesus Christ, the only

source of wisdom, from whom alone all good things come.

El sela

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Chapter 1 Introduction

“They shall beat their swords into plowshares and their spears

into pruning hooks , nations shall not lift up sword against

nation , neither shall they war any more……” avers the Bible.

This is the concept close to International Humanitarian Law. War is

certainly an ugly splotch on the face of humanity and involves most

brutal and arbitrary violence.

The world has been a witness to number of wars and battles,

confrontations and conflicts. Such power struggles lead to innumerable

problems such as legal, political, socio-economic and humanitarian.

Hence a need was felt that governments, organizations and individuals

in the field intervene to strategize a path for comity of nations.

Individual initiatives of philanthropists like Henry Dunant who

witnessed the pain and agony of 40,000 (forty thousand) soldiers after

the battle of Solferino (1859) led to a normative frame work as well as

an institutional response culminating in the establishment of the

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International Committee of Red Cross in 1863 and the adoption of

Geneva Conventions in 1940 and additional protocols of 1977.

At the outset its worthwhile to understand that Humanitarian Law

is the part of Public International Law.

International Humanitarian Law is burgeoning as a important system

of justice and has gained

momentum in the recent past with its activists across the globe.

Having thus set the perspective, let us move on to understand the

meaning, origin and development of International Humanitarian

Law.

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Chapter 2 Meaning & Purpose of Humanitarian Law

The term ‘Humanitarian Law’ is of recent origin. The Geneva

Convention of 1949 did not use the term ‘Humanitarian Law’

but only used the words ‘humanitarian activities and

‘humanitarian organizations.’1

1. International Humanitarian Law is also called as the ‘Law

of Armed Conflict’ and previously known as ‘Law of War

’as a special branch of law, governing situations of armed

conflicts.

2. However author H.O Agarwal is of the opinion that

Humanitarian Law is different from the Law of War ; since

according to him, the former does not cover all those

matters which according to a traditional view belongs to

1 Article 9 of the Geneva Convention, numbers I & III and A. 10 of

Geneva Convention No 4.

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the Law of War. He contends that the rule of war based on

humanitarian considerations or motivations are called

Humanitarian Law.

3. Some other authors in the field have opined that

‘Humanitarian Law’ deals with those matters which have

an impact of armed conflict on the life, personal integrity

and liberty of human beings.

4. International Review of Red Cross at page 90 refers to

Humanitarian Law as “ an emergency law applicable in

armed conflicts and has aims which are more limited yet

more clearly defined than that of human rights law; its

provisions are mandatory…”

5. ICRC definition: IHL is a set of international rules,

established by treaty or custom which are specifically

intended to solve humanitarian problems, directly arising

from international or non international armed conflicts and

which for humanitarian reasons limit the right of the

parties to a conflict to use methods and means of warfare

of their choice or protect persons and property that are or

may be affected by the conflict.”

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6. “International Humanitarian Law is part of universal

international law whose purpose is to forge and ensure

peaceful relations between peoples; it makes substantial

contribution to the maintenance of peace in that it

promotes humanity in times of war.”2”

7. It aims to prevent or at least hinder mankind’s decline to a

state of complete barbarity.”

8. And what is International Law? International Law is

supra national and its fundamental rules are binding on all

states .Its goals are to maintain peace, to protect human

being in just order and to promote social progress in

freedom.”3

9. Thus it can be said that IHL is that body of law which

limits the use of violence in times of war so as to

obliterate and reduce the occurrence of barbaric acts

inflicted during war and cut out brutality in armed

conflicts by instilling the principles of humanity.

10. Respect for IHL helps lay foundation on which peaceful

settlement can be built once the conflict is over.

2 MK Balchandran, Varghese Rose, Introduction to IHL;ICRC Regional Delegation , New Delhi, 1197,at pg 3,last paragraph3 Preamble to the UN Charter.

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11. Principle of EX INJURIA NON ORITUR IUS: As

against the general principle of law that no one should

obtain a legal benefit from his own illegal action ,i.e. Ex

Injuria Non Oritur Ius, the principle of IHL quiet contrarily

does not distinguish between the aggressor and the victim.

Apparently IHL seems to contravene the general principle

but the aim of IHL seeks to justify the rationale behind

equal treatment of aggressor and the victim.

12. This branch of law is often called as JUS AD BELLUM

or in modern times the rules governing the use of force. Jus

In Bello, basically deals with fact as it is, i.e. with the fact

of armed clash irrespective of what caused the conflict and

whether at all it is justified. It does not concern itself with

lawfulness or unlawfulness of armed conflict.

13. The difference between IHL and Human Rights Law

(HRL), is that the former concerns itself with rules

governing to resort to armed force, while the latter is

concerned with rules governing conduct itself. IHL is

applied only during war or armed conflict but human rights

are applied even in times of peace. A sate which becomes a

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party of human rights treaty assumes an obligation to treat

all persons within the jurisdiction in accordance with the

provisions of the treaty; on the other hand humanitarian

treaties bind only state parties to the treaties. However

once established, an IHL treaty is binding on both

conflicting state parties and is not dependent on

reciprocity. Even if one state party violates the provisions

of the treaty, that does not justify the other state party from

not following the provisions o f the treaty. Certainly both

are common to the extent that they both are a set of rules in

the best interest of protection of individuals. Both IHL and

HRL are applied in entirely different circumstances but

both have human considerations.

14. Nicaragua Case: The International Court of Justice (ICJ)4

observed that the principles of humanitarian law are

identical with the elementary considerations of humanity.

15. Because of the close relationship between the two laws the

UN General assembly has adopted few resolutions

regarding Humanitarian Law under the title of ‘Respect of

Human Rights In Armed Conflicts’.

4 ICJ Reports 1986,p11210

16. IHL contains many more rules requiring the individual or

the community to act than classic human rights law.5

17. However due to their varied genesis and diverse field of

application, humanitarian laws cannot be called as direct

branch of HRL nor can protection of human rights can be

considered as a specific portion of IHL.

18. Thus IHL is that part of International Law which governs

situations of armed conflicts and wars.

19. The purpose of IHL is to allay the efforts of war and

alleviate the sufferings caused as a result of war and armed

conflict.

20. It achieves its purpose by cutting out the choice of methods

of military operations that can be used, and imposes

obligations of conflicting parties to leave out parties or

persons who are no longer interested in participating in the

conflict and are hostile in action.

21. In International Humanitarian Law, a treaty is binding only

upon state parties signatory to the said treaty as ‘Pacta

Tertis nec nocent nec prosunt’. However if the treaty

acquires a customary rule status then even third parties or

5 Ibid11

so to say all states are bound by the treaty irrespective of

ratification.

22. Many rules of IHL is applicable in armed conflict since

they are elementary considerations of humanity, hence

Geneva and Hague conventions have enjoyed broad

accession.6

23. Judge Weeramantry of ICJ in his dissenting opinion

observed that rules of international law of war has clearly

acquired the status of jus cogens for they are fundamental

rules of human character, from which no derogation is

possible.7

24. The four actions aimed by IHL are : a) Preventive

Action, in terms f duties on combatants, b) Remedial

Action , in terms of mitigating the sufferings of victims of

war, c)Reactive Action, in terms of representation to

concerned authorities, and d) Punitive Action by

prosecution of culprits after trial at relevant tribunals, such

as ICC, Adhoc tribunals etc.

6 ICJ Reports 1996 7 Ibid at page 258

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About the Author

Ms Henrietta Newton Martin, formerly known as Ms Henrietta

Newton before her marriage  is a “Legal Consultant by

profession.She is a Legal Advisory Partner in one of the leading

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law firm in Oman. In addition she also partners a Professional

Consulting Services organization in India. Further, she is a

Advisory Board Member of Global Development Foundation. She

has been prominent in her legal service and practice, for nearly a

decade. She assumed the role of legal consultant in Oman in the

year 2011. She practiced as a lawyer in India and also delivered

lectures in law and management, to both UG and PG students, by

virtue of which she was even a university examination papers

evaluator for a particular session. In terms of Oman, Henrietta

takes keen interest in law interpretation, unlocking and

understanding of complex legal issues particularly in relation to

the interface between different domestic sector laws and

international laws that might affect multinational companies, even

in the Labour law perspective. She holds a Master of Laws Degree,

in which she is a gold medalist, specializing in Human Rights and

laws, similarly even in her Bachelor of Laws, she is a university

topper, ranked first, and a gold medalist. She has also done

numerous courses transcending her area of practice including

special skills training in Human Resources Management and

Administration. Ms Newton is also a Bachelor of Commerce

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graduate- specializing in General/Personnel/Services

Management, and Masters in Managerial Science, with

specialization in HR. She has exceptional research aptitude skills

special expertise in Legal drafting, legal interpretation, industrial

jurisprudence, and labor laws. Her subject of interest is

Constitutional laws and Human Rights.

 She has authored General Laws and Interpretation, Sultanate of Oman

, Part 1.

She is currently authoring Part 2 of the above mentioned title as

well as books on Industrial Psychology, General Labor laws,

Constitution of India -Perspicuous edition, Social Engineering ,

and other fictional books as well, very soon to be published and

made available in a store close to you.

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