It is the set of legal norms that are in charge of regulating the relations between the subjects of International Law (Brotóns, 1997: 1) Subjects of International Law are those that have the following elements: (i) they have the capacity to celebrate agreements between their peers; (ii) they can claim the rights derived from said agreements, and (iii) they must comply with the obligations that International Law imposes on them and, therefore, they can be internationally responsible for such non-compliance (Sorensen, 2002: 261). States and international organizations are generally recognized as subjects of International Law; however, the Holy See, the “tiny states”, the colonies, the autonomous territories, the territories under fiduciary administration of the UN, belligerent movements, insurgent groups and occasionally individuals (Sorensen, 2002: 262-276).
The sources of International Law are the methods of creating legal norms of an international nature and are constituted by main sources and auxiliary sources. The first are international treaties, international custom and general principles of international law. The second are judicial decisions and doctrine (Sorensen, 2002: 262-276).
i) International treaties (see International treaties). ii) International custom. It is made up of the repeated practice of the subjects of International Law and that they accept as law. The custom may be universal or general or regional or local depending on the number of States that are bound by these rules.
iii) General principles of International Law. They are divided into two types of principles. The former consist of those principles recognized in legal systems of the States (for example, first in time, first in law). The latter are made up of those principles that the subjects of International Law have recognized through their practice and that do not require further justification (for example, equality of States, prohibition of the use of force).
iv) Judicial decisions. They constitute the application of International Law, so that judicial decisions are the reasoning by means of which people with recognized experience in the matter, in their capacity as judges or arbitrators, determine the content of said law.
v) Doctrines of advertisers. They are the studies of renowned academics who have addressed different issues of International Law, individual opinions of international judges, opinions of international organizations, among others.
International Humanitarian Law, concept of
Branch of Public International Law made up of a set of rules that seeks, for humanitarian reasons, to protect and assist people who do not participate, or for whatever reason have stopped participating in armed conflicts but who are affected by them. On the other hand, International Humanitarian Law limits the means and methods of war in such a way that the use of violence is restricted to the amount strictly necessary to weaken the enemy's war potential.
Among the basic principles of International Humanitarian Law, in accordance with its definition, the following can be pointed out: (i) distinction – it prohibits attacks against the population or civilian objects, requiring the parties to the conflict to maintain at all times the distinction between people who participate in hostilities and those who have not done so or have stopped doing so for whatever reason; (ii) military necessity –justifies those measures of military violence that are not prohibited by International Law and that are necessary and proportionate to guarantee the rapid subjugation of the enemy with the least possible cost in human lives and economic resources–; (iii) proportionality –prohibits the perpetration of attacks when the loss of civilian life or damage to civilian objectives is foreseeable and excessive in relation to the direct, concrete and anticipated military advantage–, and (iv) humanity –prohibits inflicting suffering , injury or destruction that are not currently necessary, that is, provided for legitimate military purposes– (IACHR, 2002: paragraphs 65 and 66).
It is also important to highlight that International Humanitarian Law does not prohibit, nor could it prohibit, violence in armed conflicts, at the same time that it does not provide protection to all the people involved in them. International Humanitarian Law comprises two branches that are known by the place where the main international treaties that comprise them were adopted:
1. Law of Geneva. It is International Humanitarian Law in the strict sense and its main objective is to provide the necessary protection and assistance to people who do not participate in hostilities –civilian population–, or who for any reason have stopped doing so –wounded, sick, shipwrecked and prisoners. of war, among others.
2. Law of The Hague. It is the branch of International Humanitarian Law destined to establish the rights and obligations of the belligerent parties in the conduct of hostilities, through the limitation of the means and methods of war.
Among the main international instruments that recognize and contain norms of International Humanitarian Law are: (i) First Geneva Convention of August 12, 1949 to Ameliorate the Fate of the Wounded and Sick of the Armed Forces in Campaign; (ii) Second Geneva Convention of August 12, 1949 for the Amelioration of the Fate of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; (iii) Third Geneva Convention of August 12, 1949, relative to the Due Treatment of Prisoners of War; (iv) Fourth Geneva Convention of August 12, 1949, relative to the Due Protection of Civilian Persons in Time of War; (v) First Additional Protocol to the Geneva Conventions of August 12, 1949, relative to the Protection of Victims of International Armed Conflicts; (vi) Second Additional Protocol to the Geneva Conventions of August 12, 1949, relative to the Protection of Victims of Non-International Armed Conflicts; (vii) The Hague Convention for the Protection of Cultural Assets in the Event of Armed Conflicts; (viii) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction; (ix) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons That May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects; (x) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, and (xi) Optional Protocol to the Convention on the Rights of the Child, regarding the Participation of Children in Armed Conflicts, among many others. In addition, it is important to mention that the Rome Statute of the International Criminal Court can and should be considered as an instrument of International Humanitarian Law as it contains norms related to the repression of serious infractions of the Law of Geneva and The Hague.
Finally, it should be clarified that the application of International Humanitarian Law does not depend, as mentioned above, on the purposes that each of the parties to the conflict pursues, binding themselves absolutely even in cases in which the opposing party fails to comply with a or various provisions; In other words, compliance with International Humanitarian Law is not conditional on reciprocity between the parties, in such a way that the protection of victims of armed conflicts is prioritized, above all.
The norms of International Humanitarian Law must also be observed and respected by all those parties involved in the conflict, whether state or non-state actors (including the civilian population). For this reason, the States, together with other agencies or organizations –especially the International Committee of the Red Cross– have the obligation or mandate to promote and disseminate the norms and principles of International Humanitarian Law, and to train officials and public servants , particularly members of the armed forces, therein.