Current Sources of International Humanitarian Law (IHL)
Introduction
International Humanitarian Law (IHL), also known as the law of armed conflict, regulates the conduct of parties during war and seeks to protect persons who are not or are no longer participating in hostilities. The sources of IHL are the origins from which its rules are derived and recognized as legally binding.
Current Sources of IHL
The sources of IHL are generally classified in accordance with Article 38 of the Statute of the International Court of Justice (ICJ), which provides the framework for identifying international law sources:
1. Treaties and Conventions
- These are written agreements between states that explicitly set out the rules of IHL.
- The most important treaties include:
- Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005 (protection of wounded, sick, prisoners of war, and civilians).
- Hague Conventions of 1899 and 1907 (laws and customs of war on land and sea).
- Convention on Certain Conventional Weapons (CCW), 1980.
- Treaties are binding only on states parties that have ratified them.
2. Customary International Law
- Customary law consists of unwritten rules derived from the consistent and general practice of states followed out of a sense of legal obligation (opinio juris).
- Many IHL rules have become customary and bind all states, even those not party to specific treaties.
- Examples include the prohibition of torture, the principle of distinction between combatants and civilians, and protection of medical personnel.
3. General Principles of Law
- These are basic principles common to major legal systems that supplement treaty and customary law when gaps exist.
- Examples include principles of humanity, proportionality, and necessity.
4. Judicial Decisions and Teachings
- Decisions of international courts (e.g., ICJ, International Criminal Tribunal for the former Yugoslavia) help interpret and develop IHL rules.
- The writings of qualified experts and scholars also contribute to the understanding and clarification of IHL norms.
Summary Table
| Source | Description | Indian Context Example |
|---|---|---|
| Treaties and Conventions | Written agreements like Geneva Conventions | India is a party to Geneva Conventions, following their rules in conflict |
| Customary International Law | Unwritten but binding practices of states | India adheres to customary prohibitions like torture and distinction |
| General Principles of Law | Basic legal principles common worldwide | Application of humanity and proportionality in armed forces conduct |
| Judicial Decisions & Teachings | Court rulings and expert writings | Indian courts refer to IHL principles in conflict-related cases |
Conclusion
The current sources of International Humanitarian Law consist mainly of treaties, customary international law, general principles of law, and judicial decisions. Together, they form a comprehensive legal framework that governs conduct during armed conflict, protects vulnerable persons, and promotes respect for human dignity. India recognizes and implements these sources to comply with its international obligations in times of conflict.