View of International Humanitarian law at war

War is fear, it is nothing but raw violence but sometimes it cannot be avoided. There are laws to prevent the war. Yet states continue to wage wars and groups still take up weapons when they have lost hope of just treatment by state or by own government. Armed conflict can occur within the state (known as civil war) or with another state. One can justify war by showing the legitimate reasons of war, known as jus ad bellum, Jus  ad bellum is the title given to the branch of law that defines the legitimate reasons a state may engage in war and focuses on certain criteria that render a war just. The principal modern legal source of jus ad bellum derives from the Charter of the United Nations, which declares in Article 2: “All members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”; and in Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”

But what if there is a war going on on the battlefield no matter just or unjust, how to treat the soldiers? Can an adverse party do anything they want? Is there any value of human life or they are just enemy body?

Here IHL answers so many questions and deals it known as jus in bello (set of law that limits the means and methods of war) “Why do we need to limit?” such question is very normal to come into mind. Let’s deep a little more, let’s ask why do the soldiers fight? The answer is very simple because they are ordered to fight, so they don’t have any personal interest in killing people and if a soldier is not worth fighting why should be treated as an enemy? This theory was first introduced my Jean Jacques rousseau in his book “The social contract” he said “.. Individuals are only enemies by accident, not as men, bust as soldiers…” Rousseau continued, logically the soldiers may only be fought as long as they themselves are fighting. One the lay down their weapons “they again become mere man” their lives must be spared.

If we look back in the book, A memory of solferion, the author Henry Dunant did not dwell so much on the fact that the soldiers were wounded rather he was shocked to see the absence of help and the sufferings of such absence, so the aim was not to stop the war but to set rules during the war so that sufferings can be reduced and people can get more human treatment.

 Jus in bello, by contrast, is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. So a party engaged in a war that could easily be defined as unjust (for example, Iraq’s aggressive invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of the war, as would the side committed to righting the initial injustice. This branch of law relies on customary law, based on recognized practices of war, as well as treaty laws (such as the Hague Regulations of 1899 and 1907), which set out the rules for conduct of hostilities. Other principal documents include the four Geneva Conventions of 1949,

  • Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
  • Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
  • Convention (III) relative to the Treatment of Prisoners of War.
  • Convention (IV) relative to the Protection of Civilian Persons in Time of War.
  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)
  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)

There is no agreement on what to call jus in bello in everyday language. The International Committee of the Red Cross (ICRC) and many scholars, preferring to stress the positive, call it international humanitarian law (IHL) to emphasize their goal of mitigating the excesses of war and protecting civilians and other noncombatants. But military thinkers, backed by other scholars emphasise that the laws of war are drawn directly from the customs and practices of war itself and are intended to serve State armies. They commonly use the more traditional rubric, the laws and customs of armed conflict or more simply, the laws of war.

Following the convention and protocols they may summed up as follows:

  1. The lives, physical and moral integrity of persons not taking, or no longer taking an active part in hostilities must be respected. They must in all circumstances be protected and treated humanely without discrimination.
  2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
  3. The wounded and sick must be collected and cared for by the party holding them. Protection also covers medical personnel, 9 establishments, transports and equipment. The Red Cross or Red Crescent emblems must also be respected.
  4. The lives, dignity, personal rights and convictions of captured combatants and civilians under the authority of an adverse party must be respected. They must be protected against all acts of violence and reprisals.
  5. Everyone has the right to benefit from fundamental judicial guarantees. No one shall be responsible for an act he or she has not committed. No one shall be subjected to torture, corporal punishment or cruel and degrading treatment.
  6. The parties to a conflict do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
  7. Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such, nor civilian persons shall be the object of attack. Attacks shall be directed solely at military objectives.


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Rayhanul Islam

Advocate Rayhanul Islam is the founder and Editor in Chief of Law Help BD. He is also a researcher. Critical thinking is his main focus. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human rights concept to the root level. e-mail: [email protected]

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