International Humanitarian Law (IHL): Conventions and Protocols

IHL (law of armed conflict/jus in bello) regulates the conduct of hostilities and protects persons not or no longer taking part in them. It applies equally to all parties, irrespective of the legality of the war (jus ad bellum – Art 2(4), Art 51 UN Charter is a separate branch).

Two streams: Hague law (means and methods of warfare – Hague Conventions 1899/1907, Hague Regulations 1907) and Geneva law (protection of victims – Geneva Conventions 1949 and Additional Protocols 1977). Additional Protocol I (1977) merges both.

Milestones: Lieber Code (1863, USA); ICRC founded in 1863 (Henry Dunant, after Solferino 1859; A Memory of Solferino, 1862); First Geneva Convention 1864; St Petersburg Declaration 1868 (prohibition of explosive projectiles under 400 g); Hague Peace Conferences 1899 and 1907; Geneva Gas Protocol 1925; Geneva Conventions of 1929; Four Geneva Conventions of 12 August 1949 (in force 21 October 1950); Additional Protocols 8 June 1977 (in force 7 December 1978); Protocol III 2005 (in force 2007).

Martens Clause (Hague 1899 preamble; AP I Art 1(2)): in cases not covered by treaties, civilians and combatants remain under the protection of the principles of the law of nations, from established custom, principles of humanity and dictates of public conscience.

Customary IHL: ICRC Study (Henckaerts and Doswald-Beck, 2005) – 161 rules. Nuclear Weapons AO (1996) called the fundamental rules of humanitarian law ‘intransgressible principles of international customary law’; the Court could not conclude definitively on the lawfulness of nuclear weapons in an extreme circumstance of self-defence where the very survival of a State is at stake.

Universal ratification: all States are parties (Palestine acceded in 2014). India ratified the Conventions in 1950 and enacted the Geneva Conventions Act, 1960; India is not a party to AP I or AP II.

Common Articles (1–4 in each Convention): Art 1 – undertake to respect and ensure respect; Art 2 – applies to international armed conflicts (declared war or any armed conflict between two or more States, occupation even without resistance); Art 3 – non-international armed conflicts (‘mini-convention’): humane treatment without adverse distinction; prohibits violence to life and person, hostage-taking, outrages upon personal dignity, sentences without regular judicial guarantees; wounded and sick shall be collected and cared for; ICRC may offer its services. Nicaragua (1986) – Art 3 reflects elementary considerations of humanity applicable in any conflict. Hamdan v Rumsfeld (US Supreme Court, 2006) – Common Art 3 applies to Guantanamo detainees.

Penal enforcement (Arts 49/50/129/146): parties must enact legislation, search for and try or extradite persons alleged to have committed or ordered grave breaches (universal jurisdiction – aut dedere aut judicare).

Grave breaches (common to all Conventions): wilful killing; torture or inhuman treatment including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity. GC III: compelling a POW to serve in hostile forces; depriving of fair trial. GC IV: unlawful deportation or transfer, unlawful confinement, taking of hostages. AP I Art 85 adds attacks on civilians, perfidy, apartheid, unjustifiable delay in repatriation, attacks on cultural property.

Combatant and POW status (GC III Art 4): members of armed forces; militia/volunteer corps/organised resistance movements satisfying four conditions – (1) responsible command, (2) fixed distinctive sign recognisable at a distance, (3) carrying arms openly, (4) conducting operations in accordance with laws and customs of war; levée en masse (Art 4(A)(6)); Art 5 – doubtful cases decided by a competent tribunal. Mercenaries are not entitled to combatant/POW status (AP I Art 47); spies (Art 46) lose status. Child soldiers: Optional Protocol to CRC (2000) – no compulsory recruitment under 18; recruitment under 15 is a war crime.

Emblems: Red Cross (reversed Swiss flag), Red Crescent, Red Crystal (Protocol III, 2005). The Red Lion and Sun is no longer used (Iran dropped it in 1980). Misuse of emblem = perfidy/war crime.

Occupation: Hague Regulations Arts 42–56; GC IV Arts 27–34, 47–78. Occupant has administration, not sovereignty; must respect laws in force unless absolutely prevented (Hague Reg Art 43); cannot transfer its own civilian population into occupied territory (GC IV Art 49(6)); collective penalties prohibited (Art 33); duty to ensure food and medical supplies (Art 55). Wall AO (2004): GC IV applies in the Occupied Palestinian Territory; settlements and the Wall violate IHL; Armed Activities (DRC v Uganda, 2005): Uganda as occupying power in Ituri. ICJ AO of 19 July 2024 declared Israel’s continued presence in the OPT unlawful.

Protocol I (1977) – International armed conflicts: includes wars of national liberation against colonial domination, alien occupation and racist regimes (Art 1(4)). Key: Art 35 (basic rules), Art 37 (perfidy), Art 43–44 (armed forces, combatants – Art 44(3) relaxed distinction in exceptional situations), Art 48 (distinction), Art 51 (civilian population), Art 52 (civilian objects; definition of military objective in 52(2)), Art 53 (cultural property), Art 54 (starvation), Art 56, Art 57–58 (precautions), Art 75 (fundamental guarantees), Art 85 (grave breaches), Art 90 – International Humanitarian Fact-Finding Commission (IHFFC).

Protocol II (1977) – Non-international armed conflicts: higher threshold than Common Art 3 – requires armed forces/dissident groups under responsible command exercising control over part of the territory to carry out sustained and concerted military operations and implement the Protocol; excludes riots, isolated and sporadic acts of violence (Art 1(2)). Key: Art 4 (fundamental guarantees), Art 13 (civilians), Art 14 (starvation), Art 17 (forced movement). No POW status in NIACs.

Protocol III (2005): additional distinctive emblem (Red Crystal).

India: not party to AP I and II; says that it observes their rules to the extent they reflect custom.

Components: ICRC (1863, Geneva – private Swiss association with international mandate under the Geneva Conventions, i.e., Common Art 3 and GC III Art 126), IFRC (1919), National Societies (Indian Red Cross Society – Act of 1920).

Seven Fundamental Principles (proclaimed at Vienna 1965): humanity, impartiality, neutrality, independence, voluntary service, unity, universality. Henry Dunant won the first Nobel Peace Prize (1901); the ICRC won the Nobel Peace Prize in 1917, 1944 and 1963.

Nuremberg Tribunal (IMT, London Charter 1945): crimes against peace, war crimes, crimes against humanity; Nuremberg Principles affirmed by GA Res 95(I) (1946) and formulated by ILC (1950); Tokyo Tribunal (IMTFE, 1946). Principles: individual criminal responsibility; official position no defence; superior orders no defence (but may mitigate); right to fair trial.

Ex post tribunals: ICTY (SC Res 827, 1993; Hague; closed 2017), ICTR (SC Res 955, 1994; Arusha; closed 2015) – residual functions with the IRMCT; Special Court for Sierra Leone (Charles Taylor, 2012); ECCC (Cambodia); Special Tribunal for Lebanon. Cases: Tadić (ICTY 1995 – jurisdiction; the test for armed conflict; war crimes can occur in NIACs; 1999 – ‘overall control’ test); Akayesu (ICTR 1998 – first conviction for genocide by an international tribunal; rape as an act of genocide); Furundžija, Kunarac (sexual violence, enslavement), Krstić (Srebrenica genocide).

Command responsibility: AP I Arts 86–87; Rome Statute Art 28; Yamashita (US Military Commission, 1945).

Universal jurisdiction: Eichmann (Israel, 1961); Pinochet (UK House of Lords, 1999 – no immunity for torture); Arrest Warrant (DRC v Belgium, ICJ 2002 – sitting foreign ministers enjoy personal immunity before foreign national courts, but not before certain international courts).

Genocide Convention 1948: adopted 9 December 1948; in force 12 January 1951; term coined by Raphael Lemkin (1944). Art II: acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group – (a) killing; (b) serious bodily or mental harm; (c) deliberately inflicting conditions of life calculated to bring about physical destruction; (d) imposing measures to prevent births; (e) forcibly transferring children. Art III: punishable acts – genocide, conspiracy, direct and public incitement, attempt, complicity. Political groups are not covered. Art IX: ICJ jurisdiction. Bosnia v Serbia (2007): Srebrenica was genocide; Serbia failed to prevent and punish but was not responsible for committing it; Croatia v Serbia (2015): requires dolus specialis; Gambia v Myanmar; South Africa v Israel (2024 provisional measures). India ratified the Genocide Convention in 1959.

Rome Statute: adopted 17 July 1998; in force 1 July 2002; seat: The Hague; permanent treaty-based court, not part of the UN (relationship agreement 2004). Roughly 125 States Parties after Ukraine joined (1 January 2025); several withdrawal notices since (Hungary, and announcements by Burkina Faso, Mali and Niger – verify current status). India, USA, China, Russia, Israel are not parties.

Crimes (Art 5): genocide (Art 6), crimes against humanity (Art 7 – widespread or systematic attack against any civilian population), war crimes (Art 8, including NIACs), crime of aggression (Arts 8bis, 15bis, 15ter – Kampala amendments 2010, activated on 17 July 2018).

Jurisdiction: only over natural persons (Art 25), aged 18 or above (Art 26), after 1 July 2002 (Art 11); no immunity for official capacity (Art 27); command responsibility (Art 28); no limitation (Art 29); superior orders (Art 33). Art 12: preconditions – territory of a State Party or nationality of the accused (or ad hoc acceptance). Art 13: triggers – State Party referral, UNSC referral (Chapter VII – Darfur 2005, Libya 2011), or proprio motu investigation by the Prosecutor (with Pre-Trial Chamber authorisation). Art 16: SC may defer for 12 months (renewable). Art 17: complementarity – the ICC is a court of last resort. Art 77: maximum penalty 30 years or life; no death penalty.

Organs (Art 34): Presidency, Chambers (18 judges, nine-year non-renewable terms), Office of the Prosecutor, Registry; Assembly of States Parties; Trust Fund for Victims.

Cases/trend: Lubanga (2012 – first conviction, child soldiers), Ntaganda, Ongwen, Al Hassan; arrest warrants against Vladimir Putin (March 2023), Benjamin Netanyahu and Yoav Gallant (November 2024); warrants for Taliban leaders (2025); Rodrigo Duterte arrested and transferred to The Hague (March 2025). Compliance disputes (Mongolia 2024; Hungary).

India’s position: participated in Rome (1998) but did not sign; objections – SC referral and deferral powers, treatment of nuclear weapons, proprio motu powers and jurisdiction over non-parties, absence of death penalty.

Relationship: both apply in armed conflict; IHL is lex specialis (Nuclear Weapons AO; Wall AO; DRC v Uganda). ICCPR Art 4: non-derogable rights – Arts 6, 7, 8(1)–(2), 11, 15, 16, 18.

Emerging issues: lethal autonomous weapons systems (CCW GGE; UNGA resolution in 2024); cyber operations (Tallinn Manual 2.0, 2017); starvation and humanitarian access; attacks on health care (SC Res 2286, 2016); explosive weapons in populated areas (Dublin Declaration, 2022); protection of cultural property; Special Tribunal for the Crime of Aggression against Ukraine (Council of Europe–Ukraine agreement, June 2025); 75th anniversary of the Geneva Conventions (August 2024).