The Laws of War in an Era of Endless Conflict

Introduction:

Violence is one of the striking features of the present day. Violent attack on fellow human beings are as frequent as they are varied. Violence occur in all forms and at all levels of intensity ranging from isolated kidnapping or assassination of single individuals to such large scale activities such as massive bombardment or  total territorial seizure. We are here concerned with warfare with characteristics of war which is styled as armed conflict. This may be characterized in different forms likely

1. International armed conflict i.e. conflict between the states
2. Non international armed conflict i.e. conflict occurring within territory of state.

• National with international character like Vietnam war

When states cannot or will not settle their disagreements or differences by peaceful means weapons are suddenly made to speak. War inevitably results inevitably results in imeasureable sufferings among people  and in severe damage to property, public or private. War is by definition is a necessary evil as the Nuremberg tribunal set forth in its judgment of the major war criminal trials of Second World War.

Definition and Concept

International Humanitarian Law (hereinafter referred as IHL) also called the law of armed conflict previously known as the law of war is a special branch of law governing situations of armed conflict. In simple terms it may be defined as branch of law of nations or international law which governs relation between members of international community namely, States. IHL seeks to mitigate the effects of war with an objective to limit the choice of means and methods of conducting  military operations and it obliges the belligerents to spare person who do not participate in hostility. States which use force against another state to achieve its end contravenes international law and commits an aggressive act even when it is apparently right. The war is prohibited under existing international law with the exception of the right to defend itself against any attack.

IHL quite simply stands mute on whether a state may or may not have recourse to the use of force. It does not itself prohibit war. The law acts on another plane it and is applicable whenever an armed conflict actually breaks out no matter for what reason. It is a part of universal international law whose purpose is to forge or ensure peaceful relation with people. It makes substantive contribution to the maintenance of peace it promotes humanity in time of war and aims to prevent and hinder mankind decline to a state of complete barbarity helping to lay foundation on which peaceful settlement can be built once the conflict is over.

Evolution and Development

It is hardly possible to find documentary evidence of when and where legal rules of humanitarian nature emerged neither it is possible to name the creator of IHL. Precursors of present day IHL are found in all cultures. They are embodied in major literary works of culture like Indian epic Mahabharata or Bible or in the rules of war in Manusmriti[1] or Japanese code of behavoiur The Busbido. During middle ages in Europe the knights of chivalry adopted rules of fighting. The achievements of 19^th century Europe must be viewed to for the historical background. Today’s universal and most written part of IHL can be traced back by two persons who were marked with traumatic experience of war- Henry Dunant[2] and Francis Leiber[3]. Apparently without knowing each other’s existence  Dunant and Leiber made essential contribution  to the concept and context of IHL. These two major figures did not invent measures for protection for victims of war rather they expressed the ideas an old idea in a form adapted to the times. They both built on the idea of Rousseau in social contract which appeared in 1762. “ War in no way is a relationship of man with man but a relationship between states in which individuals are only enemies , by accident, not as men but as soldiers. Once they lay down their weapon , they again become men. Their lives must be spared.”[4] Rousseau thus summed up the basic principle underlying the IHL. In doing so, he lays the foundation for the distinctive to be made between combatant and non combatants (the civilians). The use of force is only permitted against the combatants since the purpose of war is to overcome enemy armed force and not to destroy an enemy nation.

Efforts of Henry Dunant

The intellectual foundation for the rebirth of IHL was laid in 19^th century. Dunant in his book Memory of Solferino did not dwell much on the fact that wounded soldiers were mistreated and defenders were killed. His book was a manuscript powerful eyewitness of the 1859 Battle of Solferino in northern Italy, where around 40,000 soldiers were killed or wounded in a single day. Dunant happened to be there and was horrified by the lack of medical aid, organization, and humane treatment for the wounded. He gathered local villagers, especially women, to nurse soldiers from both sides under the motto “Tutti fratelli” (“All are brothers”). The book vividly describes the suffering of the injured and the chaos of war. He was deeply shocked by the absence of any form of help for wounded or dying he proposed two practical measures. The first led to the adoption in 1864 of the initial Geneva convention for protection of wounded and second saw the founding of Red Cross.

Efforts of Leiber

President Lincoln asked Lieber to make few rules on the conduct of war in American civil war  referred to as Leiber Code 1863. Leiber’s work heralded two momentous development. Firstly, it set instructions on the law of war and secondly it started development in modern IHL which saw emergence of rules on the conduct of war itself. In this series the first agreement was Declaration of St Petersburg, 1868 which prohibited use of projectile weapons weighing less than 400 gram. Such weapons would cause unnecessary suffering to soldiers without significantly improving military advantage. St. Petersburg Declaration added strength in eliminating the possibility of total war. Both Hague peace conferences which took place at the turn of the century attempted to set broader international legal limits to mean and methods of warfare. The Hague Convention IV of 1907 respecting the laws and customs of war on land has a long history shared by Leiber Code, St Petersburg Declaration 1868, Brussels Declaration, The Oxford Manual 1880. The martens clause constituted the legal safety net where inhabitants and belligerents remain under the protection of rule of principle of law of nation.

Sources

The four Geneva Convention of 12^th August 1949[5] for the protections of victims of war are the main source of IHL :-

1. Convention for the amelioration of the condition of the wounded and sick in armed forces in the field
2. Convention for the amelioration of the condition of the wounded shipwrecked members of the armed force at sea

• Convention relative to prisoners of war

1. Convention relative to protection of civilian person in time of war.

The Geneva Convention has been supplemented with two additional protocols of 8^th June 1977

1. Protocol additional to Geneva Convention of 12^th August 1949 relating to protections of victims of international armed conflict.
2. Protection additional to Geneva Convention 12^th august 1949 relating to victims of non international armed conflict.

The first three conventions cover well known topics of protection of wounded and sick , ship wrecked and prisoners of war. The fourth Geneva conventions breaks new ground in that it protects civilian person who have fallen into enemy hands from arbitrary treatment and violence. The 1949 treaties also led to further extremely important development the extension protection under humanitarian law to the victims of civil wars.

Meaning and Concept of IHL

Traditionally named the law of war, this branch of international law is usually referred to as the law of armed conflict. The law of armed conflict in its totality covers a wide range of subject. The aim of IHL is to protect the human being and to safe guard the dignity of man in extreme situation of war. They are bound to an ideal-the protection of man from consequences of brute force. Therefore IHL is part of that branch of law safeguarding human rights from abuse by state power.

According  to International Conference of Red Cross we understand IHL to be those international rules established by treaty or customs which are specifically intended to solve humanitarian problem directly arising from international or non- international armed conflicts ; limits the right of parties to the conflict to use methods and means of warfare of their choice or protect persons and property that are affected by the conflict.

Since IHL is special branch of law covering situation of armed conflict it is necessary to know the concept of “armed conflict”. According to common Article 2 of Geneva Convention , “ the present convention shall apply in all cases of declared war or any other armed conflict which may arise between two or more high contracting parties even if state of war is not recognized by one of them. If there is any armed conflict between two or more states then IHL is automatically applicable whether or not a declaration of war has been made and it is immaterial whether states have recognized the war or not.

Article 3 of Geneva Convention deals with another form of armed conflict called non international armed conflict i.e. confrontation between the government and rebel movements. The problem arises where the armed conflict between the states are not declared. The Hague Convention of 1899 and 1907 made formal declaration of wars necessary. It prescribed hostilities not to be opened without previous and unequivocal warning which could be in form of reasoned declaration or an ultimatum to declare a war. The second world war begun with formal declaration of war between UK and France against Germany. Likely, Netherland declared war against Japan in 1942.

The declaration of war is practically out of fashion nowadays. They too easily lead to the declaration that the state declaring war is an aggressor state. Another reason is that state states avoid consequences of declaring war as they would have to comply with rules of convention. Thirdly, the aggressor state cannot  dispense with the state of surprise. The declaration of war is necessary but there is need of distinction between the clash of arms in international border or mere infiltration of terrorist or saboteurs. Problem arise when party to the conflict denies the applicability of IHL. Similarly there is an occasional disagreement on the applicability of IHL in internal conflicts. The power to bring parties to the conflict to agree that IHL is applicable in given situation lies on :

1. Parties to the conflict
2. States not directly involved in the conflict

• Some international body example UN Security Council or ICRC

It is necessary to understand that international armed conflict and non international armed conflict are not completely similar. Legal status, in case of IAC, are similar and equal. State sovereignty is the corner stone in international law. (Article 2 of UN Charter and Declaration of Principles of International Law). In case of non IAC, legal status is of inequality. The authorities in power are legitimate government. Their opponents are insurgents whose act will be punishable as rebellion. This legal inequality would only disappear when insurgents succeed in obtaining recognition from a legitimate government. If the insurgent parties have succeeded in achieving virtual equality with the authorities in that situation the conflict becomes similar to one between states for example Spanish Civil War.

Third type of armed conflict i.e. non IAC with international character like wars of self determination or national liberalization and armed struggle against colonization racism have been also considered to be international armed conflict since the adoption of protocol I. During the initial phase of struggle of self determination it will be considered it will be considered to be internal armed conflict for example struggle of Indonesia against Netherland; Algerian war and situation in Angola as an IAC in 1972 still be premature.

Fundamental Rules of Humanitarian Law

1. Person hors de combat and those who do not take part in hostilities shall in all circumstances be protected and treated humanely without any distinction.
2. Forbidden to kill or injure enemy who has surrendered or hors de combat.
3. The wounded and sick shall be collected and cared. The emblem of Red Cross shall be protected and respected.
4. Captured combatants and civilians should be protected against all attacks of violence and reprisal. They are entitled for their lives, dignity, personal rights and conviction.
5. Everybody entitled to benefit from judicial guarantee. No one shall be held responsible for the act he has not done.
6. Armed forces do not have unlimited choice of methods and means of warfare. It is prohibited to cause unnecessary damage or excessive suffering.
7. Parties to a conflict shall distinguish between civilian population and combatants in order to spare the civilian population and property.

Basic principles of Humanitarian Law

Besides the above fundamental rules oh IHL there are some basic principles underlying entire system of IHL these basic principle include:

1. Principle of promotion of and respect for fundamental human right and freedom which is basic for IHL (preamble of UDHR)
2. Principle of equality and non discrimination. Art 2 of International covenant of Economic, social and cultural right. Similar demands are stated in Art 2 para 1 of civil and political covenant.
3. Principle of promotion of friendly relation among nations.
4. Principle of promotion of social and economic progress and improvement of standards of life including development of education and culture.
5. Principle of unity of rights and respective duties since under IHL  there exist an interdependence between human right and performance of specific duties
6. Finally there is principle of right of people and nations to self determination. This is the cornerstone of IHL and its observance will ensure favourable condition for the exercise of fundamental human right and freedoms.
7. The oldest and most basic principle of IHL is the principle of humaneness.

The legal basis of these principle are a number of acts of international law, namely, St. Petersburg Declaration 1868 , the fourth Hague Convention of 1907, Geneva Convention 1949 it additional protocols and International Covenants on HR of 1966.

Evolving Forms and Aims of Warfare in Armed Conflict

There are various problem inherent in the notion of armed conflict next focus of one’s attention is on the concept of warfare as type of activity of armed conflict. Warfare resort to violence and it is not only confined to military operation. Armed conflict, in its broader sense, encompasses various forms of hostile engagements between opposing forces. Within this scope, warfare represents a specific type of activity where violence is systematically employed to achieve strategic or political objectives. While warfare naturally involves military operations, it extends beyond the battlefield to include auxiliary and supportive actions essential for sustaining the conflict. One of the traditional components of warfare is logistical support, which may be provided directly or indirectly by the civilian population. Logistics—covering the supply of weapons, food, intelligence, transport, and shelter—ensures the operational effectiveness of combat forces. This support can be decisive in prolonging or intensifying hostilities. Historically, the significance of logistics is evident in the 17th-century naval wars between the Dutch and the English, where population-based resources and supply systems underpinned maritime operations. Similarly, in the 1999 Kargil War, logistical support to infiltrators in the difficult mountainous terrain was a critical factor that prolonged the conflict, increasing its complexity and operational challenges for the opposing side.

Thus, warfare is not limited to direct military engagement—it is a composite activity involving combat, resource mobilization, and civilian contribution, all of which collectively shape the course and duration of an armed conflict. Industrial warfare during the 19^th & 20^th century enhanced the means of combat. Industrial capacity in production of arms and ammunition such as the war planes and tanks. Economic warfare is also connected with industrial warfare  which indicates all the measures which impairs the economic capacity of the adversary. Certain measures are include cutting supplies of arms and items of military importance; attack financial position on foreign markets blockade of enemy harbours and coasts. Psychological warfare attack on industries and blockade lead to elements of psychological warfare . War between Roman and Tutons where Tutons give terrifying looks . Ultimatum of war can psychologically effect the adversary. The series of bombardment like bombardment of London in 1940 to abandon war ; nuclear attack on Hiroshima and Nagasaki to break morale of civilians. Mining in Haiphong in North Vietnam bombings in Afghanistan in 2001 may psychologically deter other states harbouring terrorism. Guerilla warfare is as old as history connected with certain specific political situation example revolution and national liberalization. Communist China, Cuba liberation of Algeria, Indonesian infiltrators, Palestinians guerilla and famous LTTE. Land warfare seizing of defended localities and occupation of enemy territory naval battles and seizure of merchant vessels bombardment of shores are part of sea warfare. Aerial warfare : development of aviation brought whole enemy territory within reach of military operation. Industrial units can be attacked leading to the conclusion that number of industrial objectives to be attacked should be high and should be spread among civilians as they suffer more in aerial attacks. Goals of warfare may be of  short range like elimination of enemy unit, interdiction of road or bridges; or of long range like getting a hold of certain territory and gaining air superiority. Political goals can be of frontier adjustment or end of particular regime. Ideology plays a important role in formation of political goals as in second world war the goal was to end the nazi regime. Similar ideologies against communalism, imperialism and Zionist. People give their support to this ideological war. Therefore it is important to fight against the influence of ideology. There are certain outlawed goals such as extermination of enemy population or territorial changes with addition of new goals such as eradication of terrorism called as war against terrorism. The only legitimate object which state should endeavour  to accomplish during war is to weaken military forces of enemy.

The principle of state responsibility in international law holds that any state violating its international obligations must stop the unlawful act, make reparations, and guarantee non-repetition. A state commits an “internationally wrongful act” when it breaches a treaty or customary international law obligation in force at the time. States are liable for acts of all their officials, whether official or unofficial, and must also prevent abuses within their jurisdiction, such as by investigating serious crimes. Liability can also extend to actions of terrorist groups or private entities operating from their territory, depending on the circumstances. Reparations and restitutions may include material and moral damages. Furthermore, third states have duties under international law, notably under Common Article 1 of the Geneva Conventions, to ensure respect for IHL and not aid or assist violations committed by other states.

International Humanitarian Law Under Strain: Case Studies from Ukraine, Gaza, and Global Security Challenges

The Russian -Ukraine conflict beginning on 24 February 2022 with series of preceding events from 2014 constitutes a clear violation of both the UN Charter’s prohibition on the use of force and the principle of territorial integrity, triggering the application of international humanitarian law (IHL) in the conflict. All parties—including Russian and Ukrainian state forces, separatists, and other armed groups—must comply with the laws of war. These rules require humane treatment of all individuals not or no longer engaged in hostilities, such as civilians, detainees, and the wounded, and expressly prohibit violence, torture, and mistreatment. Third states also bear responsibility under international law and Common Article 1 of the Geneva Conventions, meaning they must not recognize or assist the legality of Russia’s actions and should cooperate to end the aggression through lawful means.

The UN Security Council’s and the International Court of Justice’s emphasize that both Israel and Hamas (Militia group) must comply with international humanitarian law (IHL) and international human rights law (IHRL), prohibiting attacks on civilians, hostage-taking, and requiring humanitarian aid delivery. The ICJ specifically directed Israel, under the Genocide Convention[6], to ensure unhindered humanitarian assistance and avoid actions that could destroy the Palestinian population in Gaza; Hamas was urged to release hostages, though it is not bound by the Convention. IHL and IHRL apply equally during armed conflict, with non- derogable rights such as the right to life and health remaining fully in force. Occupying or controlling powers, like Israel in Gaza, have a positive duty to ensure civilians’ access to essential services, including health care, food, water, and electricity, regardless of security justifications. The UN Committee on Economic, Social and Cultural Rights and the UN Human Rights Council have affirmed that these obligations cannot be suspended, even in war. Israel’s effective control over Gaza—air, land, and sea access—means it is legally responsible for protecting the fundamental rights of its inhabitants. However, military actions such as bombing hospitals, destroying civilian infrastructure, and restricting basic supplies have severely damaged Gaza’s already fragile health system. The result is a surge in the number and severity of injuries and illnesses amid critical shortages of medical staff, supplies, and facilities. United Nations believes lasting peace between Israel and Palestine is possible only when people’s basic economic, social, and cultural rights are properly protected and fulfilled. Respect for these rights is essential to ensure dignity, stability, and long-term harmony in the region.

An Epilogue

IHL requires that violence be limited to military necessity and that parties actively address humanitarian crises they create.  In March 2025, the Academy’s Global Security and International Affairs[7] program convened experts to assess the effectiveness and future of International Humanitarian Law (IHL) amid evolving armed conflicts and weakening rule of law. Participants identified major challenges: persistent violations of IHL, geopolitical tensions, autonomous weapons, AI in warfare, and the erosion of humanitarian norms along with degradation of democratic ethos

Key concerns included:

1. Relevance of IHL in influencing belligerent behavior.
2. Compatibility of evolving nuclear doctrines with IHL.
3. Effectiveness of international courts, especially the ICC.
4. IHL’s limited ability to address all forms of civilian harm.

While some see IHL as still influential—citing states’ claims of compliance—others noted its manipulation to justify civilian harm. Enforcement mechanisms such as courts, sanctions, and diplomatic pressure were debated. Gaps in IHL’s scope were acknowledged, particularly regarding nuclear warfare and emerging technologies.

Though, International Humanitarian Law (IHL) is an integral part of international law; international law itself has just become power politics rather than justifiable instrument. International law, today, increasingly appears less as a neutral instrument of justice and more as a tool shaped by power politics. While it was conceived to regulate state conduct, protect human dignity, and preserve peace, its selective enforcement and uneven application have weakened its moral authority. Powerful states often evade accountability, while weaker nations face stricter scrutiny, creating a perception that law serves influence rather than equity. This imbalance undermines global trust and had reduced international law to a strategic device in hands of powerful state rather than a principled framework for the globe. Contenders stress the importance of engaging wider audiences, including the public, whose moral instincts often align with IHL principles. The discussion concluded with calls for renewed commitment, innovative compliance strategies, and stronger collaboration among governments, civil society, and international organizations to preserve IHL’s relevance in modern warfare.

[1] The Manusmṛti (Sanskrit: मनुस्मृति), also known as the Mānava-Dharmaśāstra or the Laws of Manu, is one of the many legal texts and constitutions among the many Dharmaśāstras of Hinduism.

[2] Henri Dunant (1828-1910) was a Swiss humanitarian, founder of the Red Cross (now Red Cross and Red Crescent) and the World Alliance of Young Men’s Christian Associations. He was co-winner (with Frédéric Passy) of the first Nobel Prize for Peace in 1901.

[3] Francis Lieber (1798-1872) was a German-born U.S. political philosopher and jurist, best known for formulating the “laws of war.”

[4] Rousseau, J.J., The Social Contract, Bk I, Ch. IV.

[5] All four conventions came  into force (effective ratification date): 21 October 1950

[6] Signed 9 December, 1948 ;Promulgated 12 January 1951

[7] The Academy founded in 1780 during American Revolution has been a leader in the multi disciplinary work field for seven decades through publications, projects, and working groups that have shaped national policies and priorities.