(1) Distinction – “In order to ensure respect for and protection of civilians and civilian objects, Parties to the conflict shall at all times distinguish between civilians and combatants, and between civilian objects and military targets, and shall accordingly direct their operations only against military targets.” [Additional Protocol 1, Art. 48] The only legitimate target of attack in an armed conflict is military personnel or property. This does not mean that civilians cannot be legally injured or killed under the law, but only that civilians and civilian objects must not be the target or goal of attack. **Protects non-combatants** During a conflict, punishment for violation of the laws of war may be a specific, intentional, and limited violation of the laws of war in retaliation. In the Indian subcontinent, the Mahabharata describes a discussion among brother leaders about what constitutes acceptable behaviour on a battlefield, an early example of the rule of proportionality: an often cited source of IHL to identify its underlying principles is the “Martens Clause”. This was first introduced in the preamble to the 1899 Hague Convention II and has since had the status of customary international law. The Martens Clause stipulates that even in situations not explicitly covered by codified IHL instruments, both combatants and civilians enjoy a minimum level of protection, namely that all hostilities must be governed by the principles of international law as they result from international law practices, of the laws of humanity and the imperatives of public conscience. This reflects the overarching objective of international humanitarian law, which is to establish minimum standards of restraint applicable in all situations of armed conflict. Martial law is considered distinct from other legal bodies – such as the domestic law of a particular belligerent in a conflict – which may provide additional legal limits for waging or justifying war.
The principles derive both from customary international law and from the sources discussed in module 3, in particular the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. It has often been said that creating laws for something as anarchic as war seems to be a lesson in absurdity. But based on the respect for customary international law by the warring parties over the centuries, it was thought that the codification of martial law would be beneficial. [ref. After the end of a conflict, persons who have committed or ordered a violation of the laws of war, particularly atrocities, may be held responsible for war crimes in judicial proceedings. In addition, nations that have signed the Geneva Conventions must seek out anyone who has committed or ordered certain “grave violations” of the laws of war, and then seek to punish them. (Third Geneva Convention, Articles 129 and 130.) There are some aspects that IHL does not regulate. For example, it does not prohibit the use of force per se, does not address the purpose of a conflict and does not protect all those affected by armed conflict, particularly combatants who are taking a direct part in hostilities and may be lawfully killed. Military necessity, along with distinction, proportionality, humanity (sometimes called unnecessary suffering) and honour (sometimes called chivalry) are the five most cited principles of international humanitarian law governing the lawful use of force in armed conflict. To put it as simply as possible, these rules can be summed up in four rules: do not attack non-combatants, attack combatants only by legal means, treat those in your power humanely, and protect victims.
At the same time, the law of armed conflict is complex, because it applies only in certain situations, these situations are not always easy to define concretely, and depending on the situation, one and the same act can be lawful or unlawful, not only illegal, but a criminal offence or neither lawful nor unlawful! (David, 2002, pp. 921-922). IHL is both simple and complex in terms of objectives, principles and associated challenges: honour is a principle that requires a certain degree of fairness and mutual respect among adversaries. The parties to the conflict must accept that their right to take measures to harm each other is not unlimited, they must refrain from taking advantage of the adversary`s respect for the law by falsely claiming the protection of the law, and they must recognize that they are members of a common profession that fights not out of personal hostility but on behalf of their respective States. [21] Modern martial law, in particular Additional Protocol I to the Geneva Conventions of 1949, prohibits attacking persons in distress who jump from an aircraft, regardless of the area over which they are. Once they land in an enemy-controlled area, they must be given the opportunity to surrender before being attacked, unless it is obvious that they are performing an enemy act or attempting to escape.
