Definition and Principles of International Humanitarian Law

PERTANYAAN

What is international humanitarian law? Please also explain the principles of international humanitarian law.

INTISARI JAWABAN

International Humanitarian Law or IHL is also known as the law of war. War is an unwanted event for humanity because war causes misery and losses that are priceless.

In war, the disputing parties are obliged to respect the 1949 Geneva Convention. Armed conflict is divided into International Armed Conflict and Non-International Armed Conflict. However, the provisions in the conventions that apply in each conflict are not the same.

Please read the review below for a further explanation.

 

ULASAN LENGKAP

This article is an English translation of Pengertian, Asas, dan Prinsip Hukum Humaniter Internasional, written by Renata Christha Auli, S.H. and was published on Thursday, 7 September 2023.

This article is an update of the article entitled International Humanitarian Law: Its Princples and Definition, which was first written by Tri Jata Ayu Pramesti, S.H., and was first published on Tuesday, 2 August 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of International Humanitarian Law

What is International Humanitarian Law? The term International Humanitarian Law is an English translation and in Bahasa Indonesia is known as Hukum Humaniter Internasional.[1] International Humanitarian Law or IHL is also known as the law of war. According to experts, the law of war is the oldest part of international law.[2] This means that IHL or the law of war is a branch or part of international law.[3]

The difference between the terms IHL and law of war lies only in their emphasis. IHL emphasizes the effects of war on humanity, the protection of war victims from excessive injury or suffering, and the prevention of great and widespread damage. Meanwhile, the law of war emphasizes more on the juridical aspects and events of war, in the sense that the scope of the applicability of this law when war occurs. However, basically, the civilian population in the law of war must also be protected.[4] According to J. G. Starke, in accordance with its historical development, the term IHL is now more often used.[5]

The following is the definition of international humanitarian law according to experts:

1. Mochtar Kusumaatmadja

According to Mochtar Kusumaatmadja, international humanitarian law is divided into 2:

1. Jus ad Bellum, which is the law of war that regulates how a state is justified in using force of arms; and
2. Jus in Bello, which is the law that applies in war, and is divided into:

 

1. Legal provisions governing the conduct of war
2. Legal provisions governing the protection of civilian or military casualties (1949 Geneva Convention)[6]

 

2. Geza Herzegh

International humanitarian law is the part of public international law that provides protection to individuals in times of armed conflict. As part of the norm, the laws of war provide relief to the wounded and sick.[7]

3. KGPH Haryomataram

International humanitarian law is a law that has the main objective of providing protection and assistance to people who suffer or become victims of war, whether they are actively participating in hostilities (combatants) or those who are not participating in hostilities (civilian population).[8]

When Does International Humanitarian Law Apply?

International Humanitarian Law only applies during times of war or armed conflict. In other words, IHL does not apply in times of peace. International humanitarian law also does not apply to situations of chaos, riots, and tension.[9]

So, what is war? War is an event that humanity does not want because war causes misery and losses that are priceless. In every war, there are acts that are cruel and against humanity.[10]

Armed conflicts are classified into 2, namely:

1. International Armed Conflict ("IAC"), namely conflicts that occur between countries. For example, 2 or more countries are at war with each other. For example, World War I and II.
2. Non-International Armed Conflict ("NIAC") is a conflict that occurs within the territory of the state (internal conflict). For example, the Indonesian government against the rebels of the Free Aceh Movement (Gerakan Aceh Merdeka), and the Philippine government against the rebels of the Moro Islamic Liberation Front.[11]

The provisions of international humanitarian law that apply in IAC and NIAC are not the same. In IAC, the 1949 Geneva Conventions and/or Additional Protocol I 1997 apply. Whereas in NIAC, only Article 3 of the 1949 Geneva Conventions governing the protection of war victims and/or 1997 Additional Protocol II apply.[12]

Overview of the 1949 Geneva Convention

The 1949 Geneva Convention is the most widely accepted convention in the world, as the entire world became a party to it. The international conference in Geneva, a realization of Henry Dunant's idea, eventually led to the 1949 Geneva Convention on the Protection of Victims of War.[13]

The 1949 Geneva Convention consists of several parts, namely:[14]

1. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Convention I).
2. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at the Sea (Convention II).
3. Geneva Convention Relative to the Treatment of Prisoners of War (Convention III).
4. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Convention IV).

As is known, there are new provisions that complement the 1949 Geneva Conventions. First, the 1997 Additional Protocol I ("Protocol I"), which was established due to the evolving methods of warfare used by countries, as well as the rules of procedure. Protocol I stipulates that the right of the parties to a dispute to choose the means and methods of warfare is not unlimited, and prohibits the use of projectile weapons and other means that may cause excessive injury or unnecessary suffering.[15]

Second, the 1997 Additional Protocol II ("Protocol II") was formed because in fact the conflict after World War II that occurred was NIAC. The only NIAC provision contained in Article 3 of the 1949 Geneva Conventions is considered very detailed, but not sufficient to resolve serious humanitarian problems due to NIAC. Thus, the principles set out in Article 3 of the 1949 Geneva Conventions were reaffirmed in Protocol II.[16]

Principles of International Humanitarian Law

There are 3 principles of international humanitarian law, namely:[17]

1. The principle of military necessity, which means that the disputing parties are justified in using violence to subdue the opponent in order to achieve the goals and success of the war.
2. The principle of humanity, in which disputants are required to pay attention to humanity, in which they are prohibited from using violence that can cause excessive injury or unnecessary suffering.
3. The principle of chivalry, i.e. in war, honesty must be prioritized. The use of dishonorable means, various kinds of trickery, and treacherous methods are prohibited.

Meanwhile, according to Ambarwati, there are 8 principles of international humanitarian law. The principles of international humanitarian law are as follows.[18]

1. Humanity, namely non-combatants must be kept away from the battle arena as much as possible, and the wounded must be kept to a minimum.
2. Importance, i.e. what can be targeted in combat is a military object.
3. Proportionality, i.e. any attack in military operations must be preceded by measures that ensure that the attack will not cause excessive casualties and damage.
4. Distinction, i.e. in armed conflict combatants and civilians must be distinguished.
5. Prohibition of causing unnecessary suffering, i.e. the principle of limitation. That is, this principle relates to the methods and means of war. For example, the prohibition of using poisons, bullets, biological weapons, and others.
6. Separation of Jus ad Bellum and Jus in Bello.
7. The minimum provisions of IHL, namely the 1949 Geneva Convention.
8. Responsibility in the implementation and enforcement of IHL, meaning that IHL must be respected by the government and citizens of the country concerned.

In conclusion, war is definitively the highest condition of conflict between humans.[19] Against this situation, IHL was formed which regulates the procedures for methods of conducting war, protection of individuals during armed conflict, treatment of prisoners of war, and others. These matters are regulated in the 1949 Geneva Conventions, Protocol I, and Protocol II. In IHL there are also 3 important principles such as military necessity, humanity, and chivalry. In essence, war does not mean being able to do everything unlimitedly, but must pay attention to humanitarian principles.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. 1949 Geneva Conventions, accessed on 7 September 2023, at 15.02 Western Indonesian Time (zone);
2. Additional Protocol I 1997, accessed on 7 September 2023, at 15.00 Western Indonesian Time (zone);
3. Additional Protocol II 1997, accessed on 7 September 2023, at 16.30 Western Indonesian Time (zone).

Reference:

1. Ambarwati (et.al), Hukum Humaniter Internasional dalam Studi Hubungan Internasional, Jakarta: PT RajaGrafindo Persada, 2009;
2. Andrey Sujatmoko, Hukum HAM dan Hukum Humaniter, Jakarta: PT RajaGrafindo Persada, 2016;
3. Arlina Permanasari (et.al), Pengantar Hukum Humaniter, Jakarta: ICRC, 1999;
4. GPH Haryomataram, Sekelumit tentang Hukum Humaniter, Surakarta: Sebelas Maret University Press, 1994;
5. Mochtar Kusumaatmadja, Konvensi-Konvensi Palang Merah Tahun 1949, Bandung: Bina Cipta, 1986;
6. Ria Wierma Putri, Hukum Humaniter Internasional, Bandar Lampung: Universitas Lampung, 2011.

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[1] Ria Wierma Putri, Hukum Humaniter Internasional, Bandar Lampung: Universitas Lampung, 2011, p. 1.

[2] GPH Haryomataram, Sekelumit Tentang Hukum Humaniter, Surakarta: Sebelas Maret University Press, 1994, p. 1.

[3] Andrey Sujatmoko, Hukum HAM dan Hukum Humaniter, Jakarta: PT RajaGrafindo Persada, 2016, p. 169.

[4] Ria Wierma Putri, Hukum Humaniter Internasional, Bandar Lampung: Universitas Lampung, 2011, p. 2.

[5] Ria Wierma Putri, Hukum Humaniter Internasional, Bandar Lampung: Universitas Lampung, 2011, p. 1.

[6] Mochtar Kusumaatmadja, Konvensi-Konvensi Palang Merah Tahun 1949, Bandung: Bina Cipta, 1986, p. 12.

[7] Ria Wierma Putri, Hukum Humaniter Internasional, Bandar Lampung: Universitas Lampung, 2011, p. 3.

[8] Andrey Sujatmoko, Hukum HAM dan Hukum Humaniter, Jakarta: PT RajaGrafindo Persada, 2016, p. 172.

[9] Andrey Sujatmoko, Hukum HAM dan Hukum Humaniter, Jakarta: PT RajaGrafindo Persada, 2016, p. 173.

[10] GPH Haryomataram, Sekelumit Tentang Hukum Humaniter, Surakarta: Sebelas Maret University Press, 1994, p. 8.

[11] Andrey Sujatmoko, Hukum HAM dan Hukum Humaniter, Jakarta: PT RajaGrafindo Persada, 2016, p. 173.

[12] Andrey Sujatmoko, Hukum HAM dan Hukum Humaniter, Jakarta: PT RajaGrafindo Persada, 2016, p. 173-174.

[13] Ambarwati (et.al), Hukum Humaniter Internasional dalam Studi Hubungan Internasional, Jakarta: PT RajaGrafindo Persada, 2009, p. xix.

[14] Mochtar Kusumaatmadja, Konvensi-Konvensi Palang Merah Tahun 1949, Bandung: Bina Cipta, 1986, p. 3.

[15] Arlina Permanasari (et.al), Pengantar Hukum Humaniter, Jakarta: ICRC, 1999, p. 129 .

[16] Arlina Permanasari (et.al), Pengantar Hukum Humaniter, Jakarta: ICRC, 1999, p. 131.

[17] Arlina Permanasari (et.al), Pengantar Hukum Humaniter, Jakarta: ICRC, 1999, p. 11.

[18] Ambarwati (et.al), Hukum Humaniter Internasional dalam Studi Hubungan Internasional, Jakarta: PT RajaGrafindo Persada, 2009, p. 41-52.

[19] Ambarwati (et.al), Hukum Humaniter Internasional dalam Studi Hubungan Internasional, Jakarta: PT RajaGrafindo Persada, 2009, p. 2.