International Humanitarian Law Cases, Materials and Commentary

INTRODUCTION

International humanitarian law is based on two foundational principles: the principle of humanity and the principle of military necessity. The principle of humanity attempts to ‘humanise’ the conduct of war by imposing limits on the means and methods of warfare, by according protection to certain categories of persons, by requiring humane treatment of captured persons and, in general, by limiting or mitigating unnecessary suffering. The principle of humanity was first proclaimed in the context of armed conflicts by Professor de Martens, the Russian Delegate to the Hague Peace Conferences of 1899, and for this reason it is often referred to as the Martens Principle or the Martens Clause. The principle of military necessity allows a belligerent to use lawful means and methods of war in order to overpower an enemy. The principles of humanity and military necessity inform all the rules of humanitarian law and, in cases of doubt, they assist in the interpretation of IHL rules. Two other principles that derive from the principles of humanity and military necessity are the principle of distinction and the principle of proportionality. According to the principle of distinction, parties to the conflict should at all times distinguish civilians and civilian objects from combatants and military objectives and afford protection to the former. According to the principle of proportionality, any harm caused by military action to civilians and civilian objects should not exceed the anticipated military advantage expected from the operation. The content and scope of these principles, and how they interact with each other in general or in particular situations, are important issues to be examined in this chapter but also in subsequent chapters.

Resources: Preamble and Art. 6, Hague Convention II (HCII); Art. 5, Hague Convention V (HCV); Common Article 3, GCs; Arts 12 and 63, Geneva Convention I (GCI); Arts 12 and 62, Geneva Convention II (GCII); Arts 4, 13, 55 and 142, Geneva Convention III (GCIII); Arts 27 and 158, Geneva Convention IV (GCIV); Arts 1, 35, 43, 48–51 and 57, API; Arts 4 and 17, APII