6.1: Introduction

As the preceding chapter (Chapter 5) made clear, few incidents have such a devastating impact on human lives than armed conflict between or inside countries. It is therefore understandable that we find, even in ancient times, rules and customs of warfare with a humanitarian purpose, namely to prevent unnecessary suffering in armed conflict situations and to provide protection for certain categories of persons, such as the wounded and the sick and those not taking part in the hostilities and who can be classified as non-combatants. Today these rules and customs are largely codified in the sense that they form part of multilateral international treaties or conventions binding upon the states that have become party to them and in some instances these treaties enjoy universal or near universal acceptance by the states of the world. We refer to this body of international law as international humanitarian law (IHL) or the law of war. It must be made clear at the outset though, that IHL is not concerned with the question whether an armed conflict or the resort to armed force is lawful or justifiable. That question is determined by other rules of international law which fall outside the scope of this chapter.

However, IHL applies the moment an armed conflict has started and its sole purpose is to regulate the way in which hostilities should be conducted with a view to save and protect those who are not or no longer directly participating in the hostilities and to place restrictions on the means and methods of warfare. A first question that arises is where do we find the principles or rules applicable in these situations? To answer this question it is necessary to note the way in which states create binding law in the international legal order. This can happen in two ways: first by way of a uniform practice or custom which states follow with regard to a specific matter and which they accept as binding law between them. A rule that has come about in this manner constitutes customary international law and is binding on all states, except on a state that has persistently objected to the customary law rule. Of greater importance in our day and age is the second way in which states create binding international law, namely by concluding multilateral international agreements, also known as treaties or conventions. Sometimes even existing customary international law principles are taken up in these treaties and become codified in that way. IHL, in particular, is one of those branches of international law that has been extensively codified by means of multilateral treaties over the last hundred and fifty years. The consequences of this codification process are twofold: firstly, there now exists a well-established body of law regulating state conduct in the course of an armed conflict. This body of law is extensively covered by the documents listed in Table 6.1.

The second consequence is that non-compliance with IHL principles by a state party (who acts through its armed forces) to the conflict, will result in the legal responsibility of the state, which is a form of civil liability, and placing an obligation on the state to make reparations. At the same time the individual(s) responsible for the breach of an IHL norm may be held criminally liable for the breach on the basis of individual criminal responsibility. These two forms of liability co-exist and the one does not exclude the other. These matters will be dealt with more fully, later on in this chapter.

Table 6.1 Documents that codify International Humanitarian Law^[1]

DOCUMENT NAME	YEAR
Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GCI)	1949
Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GCII)	1949
Geneva Convention III Relative to the Treatment of Prisoners of War (GCIII)	1949
Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (GC IV)	1949
Protocol I Additional to the Geneva Conventions of 1949 relating to the Protection of Victims of International Armed Conflicts	1977
Protocol II Additional to the Geneva Conventions of 1949 relating to the Protection of Victims of Non-International Armed Conflicts	1977