ABSTRACT Appraising the Core Principles of International Humanitarian Law By Dr. Arinze Abuah International humanitarian law previously known as the law of wars has principles upon which it is founded. These principles are expected to govern both sides to an armed conflict at all times. The practicality of the strict adherence to these principles is of concern in the light of actual conflict situations. Modern day armed conflicts in their character and qualification question the possibility of strict adherence to the tenets of these principles. An examination of the stipulations of these principles in the light of actual situations is hence of importance. 1. Introduction For a very long time in the relationship between humans there have always been situations of war which could linger for as long as parties perceived their grievances towards their warring parties. The term war has however been replaced with the word Armed Conflict in international humanitarian law. The Black s Law Dictionary 1 defines an armed conflict as: A state of open hostility between two nations, or between a nation and an aggressive force; a military action taken under Article 42 of United Nations Charter 2 also termed police action. The law that governs armed conflicts of international or non-international character is the international humanitarian law. The Black s Law Dictionary has defined humanitarian law as: International law dealing with such matters as the permissible use of weapons and other means of warfare, the treatment of prisoners of war and civilian populations in armed conflict, and generally the direct impact of war on human life and liberty. International Humanitarian Law is also defined as a branch of Public International Law applicable in times of armed conflict, that restricts the rights of parties to the conflict from using the means and methods of warfare of their choice and that protects persons and property affected by or liable to be affected by the conflict. 3 International humanitarian law (IHL) is the law that regulates the conduct of war (jus in bello). It is that branch of international law which seeks to limit the effects of armed conflict by protecting persons who do not or are no longer participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants. IHL is inspired by considerations of 1 Black s Law Dictionary Eight Edition West Publishing Co. 2004. 2 UN Charter of 26 th June 1945 3 http://www.icrc.org/eng/assets/files/others/protectionemblems.pdf accessed on 13th December, 2016 @ 10:20am.
humanity and the mitigation of human suffering. It comprises a set of rules, established by treaties or custom, that seeks to protect persons and properties/objects that are (or may be) affected by armed conflict and limits the rights of parties to a conflict to use methods and means of warfare of their choice. 4 It includes the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. 5 It defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning non-combatants. It is designed to balance humanitarian concerns and military necessity, and subjects warfare to the rule of law by limiting its destructive effect and mitigating human suffering. 6 Serious violations of international humanitarian law are called war crimes. International humanitarian law, jus in bello, regulates the conduct of forces when engaged in war or armed conflict. It is distinct from jus ad bellum which regulates the conduct of engaging in war or armed conflict and includes crimes against peace and of war of aggression. Together the jus in bello and jus ad bellum comprise the two strands of the laws of war governing all aspects of armed conflicts. The law is mandatory for nations bound by the appropriate treaties. There are also other customary rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. International humanitarian law operates on a strict division between rules applicable in international armed conflict and internal armed conflict. This dichotomy is widely criticized. 7 The relationship between international human rights law and international humanitarian law is disputed among international law scholars. This discussion forms part of a larger discussion on fragmentation of international law. 8 While pluralist scholars conceive international human rights law as being distinct from international humanitarian law, proponents of the constitutionalist approach regard the latter as a subset of the former. 9 In a nutshell, those who favors separate, self-contained regimes emphasize the differences in applicability; international humanitarian law applies only during armed conflict. On the other hand, a more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict and military occupation or to certain groups of people including refugees 10, children 11, and prisoners of war 12. 4 GSDRC (2013). International legal frameworks for humanitarian action: Topic guide. Birmingham, UK: GSDRC, University of Birmingham http://www.gsdrc.org/go/topic-guides/ilfha 5. ICRCWhat is international humanitarian law? 6. GSDRC (2013). International legal frameworks for humanitarian action: Topic guide. Birmingham, UK: GSDRC, University of Birmingham http://www.gsdrc.org/go/topic-guides/ilfha 7 Stewart, James (30 June 2003). "Towards a Single Definition of Armed Conflict in International Humanitarian Law". International Review of the Red Cross. 850: 313 350. 8. Koskenniemi, Marti (September 2002). "Fragmentation of International Law? Postmodern Anxieties". Leiden Journal of International Law. 15 (3): 553 579. doi:10.1017/s0922156502000262. Retrieved 30 January 2015. 9 Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human Rights Law The Case of the Optional Protocol to the Convention on the Rights of the Child". Journal of International Humanitarian Legal Studies. 5 (1-2): 213 257. Retrieved 30 January 2015. 10 (e.g., the 1951 Refugee Convention) 11 (the 1989 Convention on the Rights of the Child)
The core objectives of international humanitarian law also known as the law of wars or the law of armed conflict is primarily to place restrictions on the use of weapons and methods of warfare. The law protects those who are not or no longer participating in hostilities, its major aim being to protect human dignity and to limit suffering during times of war. The law is applicable principally in two situations at present which include: international armed conflicts, and noninternational armed conflicts. International humanitarian law is founded upon certain basic principle. The word basic is defined by the American English Dictionary 13 as: necessary, essential for life or some process; necessary commodity, a staple requirement. While the word principle has been defined by the Black s Law Dictionary to be a basic rule, law, or doctrine. The basic principles are recognizable from early times by Philosophers such as Grotius, who took an interest in the regulation of conflicts well before the first Geneva Convention of 1864 was adopted and developed. In the 18th century, Jean-Jacques Rousseasu made a major contribution by formulating the basic principle about the development of war between states as: War is in no way a relationship of man with man but a relationship between states, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to destroy the enemy state, it is legitimate to kill the latter s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives. 14 In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: (...) civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience. 15 This, also known as the Martens clause, was already considered a standard part of a customary law when it was incorporated in Article1, Paragraph 2, of Additional Protocol I of 1977. While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of unnecessary suffering, as follows: 12 (the 1949 Third Geneva Convention) 13 American English Dictionary 14 Basura B. and Shiferaw D. in The Fundamental Principles of International Humanitarian Law Abyssinia Law African Legal Information Institute, Ethiopia, 2012. 15 Basura B. and Shiferaw D. in The Fundamental Principles of International Humanitarian Law Abyssinia Law African Legal Information Institute, Ethiopia, 2012.
Considering: (...) That the only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; 16 It is submitted that this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable. The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction: (...) the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. 17 There are also established underlying principles of proportionality that seek to strike a balance between two diverging interests, one dictated by considerations of military need and the other by requirements of humanity when the rights or prohibitions are not absolute. Different writers follow different approach in describing these principles, and for the sake of making a brief explanation of the subject matter, Bereket Bashura and Demelash Shiferaw in fundamental principles of international humanitarian law have divided them into seven principles in reviewing the rules in the past and present. 18 The first rule is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction. The second fundamental rule provides that it is forbidden to kill or injure an enemy who surrenders or who is hors de combat.the third one is the wounded and seek shall be collected and cared for by the party to the conflict which has them in his power. Protection also covers medical personnel, establishments, transport and material. The emblem of the Red Cross (Red Crescent, Red lion and sun) is a sign of such protection and must be respected. The fourth rule reads: Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief. And fifthly it is provided that everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment. The sixth one states that parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering. The seventh and the last fundamental rule provide that Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare the civilian population and 16 Basura B. and Shiferaw D. in The Fundamental Principles of International Humanitarian Law Abyssinia Law African Legal Information Institute, Ethiopia, 2012. 17.(Art. 48, Protocol I; see also Art. 1, Protocol II). 18 Basura B. and Shiferaw D. in The Fundamental Principles of International Humanitarian Law Abyssinia Law African Legal Information Institute, Ethiopia, 2012
property. Neither the civilian population nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives. 19 For the purpose of this work, I have attempted to examine six (6) basic principles of international humanitarian law. 2. PRINCIPLE OF DISTINCTION The American English Dictionary defines distinction as the act of being divided; separation, discrimination; the act of distinguishing, discriminating. The principle of distinction imputes an obligation on parties to an armed conflict to distinguish at all times between combatants and military objectives on one hand and civilians and civilian objects on the other hand. It prohibits attack against civilians and indiscriminate attack that causes disproportionate civilian injury. Operations may be directed only against military objectives and combatants; it is prohibited to target civilian objects or civilians. 20 Thus, any targeting operation directed at a civilian object or civilian is prohibited, unless the protections have been lost due to the civilian directly participating in hostilities or the civilian object is being deployed for military use. 21 A civilian object is defined in contradistinction to military objectives as objects that are not military objectives, 22 while military objectives are define as; those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 23 Therefore, hospitals and medical units are to be afforded those protections accorded civilian objects and protected from attack, as they do not satisfy the definition of military objective above. Similarly, medical personnel are protected from attack, provided they do not directly participate in hostilities. 24 Once they are found to be directly involved in the hostility the protection is lost. For instance where a school is turned into a military barrack, or where the hospital is used as a military base. The whole essence of the protection is also lost when a civilian picks up arm against the adverse party, in all these scenarios the protection is lost and they become targets of attack. The core objective of this principle is to ensure protection of individual civilians, civilian objects and the civilian population as a whole. Article 48 of Additional Protocol 1 25 clearly provides for the distinction at all times between civilians and combatants hence the right of parties to an 19. Bashura B. And Shiferaw D. Fundamental Principles Of International Humanitarian Law. 04 September 2012. 20 See art. 48, Additional Protocol I; Rules 1, 7, ICRC, Customary International Humanitarian Law Study. 21 A civilian loses their protection from attack if they directly participate in hostilities. See, e.g., Art. 51, First Additional Protocol; Art. 13, Second Additional Protocol; Rule 6, ICRC Customary International Humanitarian Law Study. Similarly, a civilian object loses its protection if it is being used for acts harmful to the enemy. Art. 74, HPCR Manual on International Law Applicable to Air and Missile Warfare; Art. 19, Fourth Geneva Convention; Rule 10, ICRC Customary International Humanitarian Law Study. 22 Rule 9, ICRC Customary International Humanitarian Law Study 23 Rule 8, ICRC Customary International Humanitarian Law Study; Art. 52, Additional Protocol I. 24 Overview of Principles and Rules of International Humanitarian Law Applicable to Conduct of Hostilities with a Focus on Targeting of Hospitals and Medical Units. 25 Additional Protocol to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts(Protocol I), of 8 June 1977.
armed conflict to choose methods of warfare is not unrestricted. Article 22 of the Hague Regulations repeated in identical terms in article 35 of Additional Protocol I points out that the rights of belligerents to adopt means of injuring the enemy is not unlimited. While Article 51(4) of Additional Protocol 1 provides in the circumstance what amount to indiscriminate attacks and prohibited same. Article 52 of the same Protocol goes on to define civilian objects and expressly stated the fact that attack on civilian objects is prohibited. However, in a real war situation, this principle of distinction appears not feasible as it looks utopia. The average military commander in real war situation seems to be more concern about its own safety and survival of the soldiers under him than the application of this principle of distinction. This principle would at best serve as a guide as it s never fulfilled. Nevertheless, lack of adherence to this principle of distinction would not absolve any officer of his liability to observe the rule of engagement. 3. PRINCIPLE OF PROPORTIONALITY The Black s Law Dictionary 26 defines the term proportionality in international law;- as the principle that the use of force should be in proportion to the threat or grievance provoking the use of force. The principle of proportionality is a corollary to the principle of distinction, the principle dictates that incidental loss of civilian life and property or injury to civilians must not be excessive in relation to the concrete and direct military advantage anticipated. 27 It therefore provides that armed force should be adequate to destroy a given military objective without resulting in excessive civilian victims and damages. Article 51(5)(b)of Additional Protocol I 28 is explicit on the subject matter and emphasis is placed on the conduct of hostilities prohibiting attacks when the civilian harm is likely to be excessive compared to the desired military advantage sought after. This is often referred to as collateral damage. The principle of proportionality cannot be applied to override specific protections, or create exceptions to rules where the text itself does not provide for one. As with the principle of necessity, the principle of proportionality itself is to be found within the rules of IHL themselves. For example, direct attacks against civilian is prohibited and hence a proportionality assessment is not a relevant legal assessment as any direct attack against even a single civilian who is not taking part in hostilities is a clear violation of IHL. Proportionality is only applied when a strike is made against a lawful military target. 29 Article 57(2)(a)(iii)of Additional Protocol I expressly laid down the requirement of precaution to be taken to avoid disproportionate attack resulting in accidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof in excess of military objectives. The assessment of proportionality of an attack is usually subjective, as the commander or the decision makers are said to be vested with the responsibility to do so. Such assessments are usually carried out before the actual attack or operation by military commander based on the available information at the time of planning. Most times these information are altered by other emerging facts at the time of actual operation, thereby defeating the original assessment of proportionality which may now result to high civilian casualty rate despite all efforts to avert same at the planning stage. As the subjective assessment approach of proportionality is most times replete with poor appreciations of the quantum of risk and anticipated military advantage, modern approach is 26 ibid 27 (http://www.lcrc.org/eng/asset/files/others/protectionenblem.pdfliteaccessedon13thdecember, 2015. 28 ibid 29 ibid
more disposed to adopting the objective approach of assessment of proportionality as encapsulated in Galic Case, which states: In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack. 30 The objective test assessment approach as reflected in the above case is recommended as it calls for reasonableness in balancing the necessity of war with the requirements of humanity. 4. PRINCIPLE OF THE NOTION OF MILITARY NECESSITY The Black s Law Dictionary defines military necessity under international law as a principle of warfare allowing coercive force to achieve a desired end, as long as the force used is not more than is called for by the situation. This principle dates from the Hague convention on laws and customs of war on land, 31 which prohibits the destruction or seizure of enemy property unless such destruction or seizure be imperative and demanded by the necessities of war. 32 This principle acknowledges that under the laws of war, winning the war or battle is a legitimate consideration. It states that armed forces do not have the freedom to ignore humanitarian considerations and do as they please. Their actions must be interpreted in the context of specific prohibitions and in accordance with the other principles of IHL. 33 The principle therefore implies that, though it is legitimate to use military force to defeat ones military objective, military force must not be disproportionate or cause superfluous injury or unnecessary suffering beyond that which is necessary to achieve a concrete military advantage. It therefore follows that the notion of military necessity itself is to be found within the rules of IHL. Article 52 of additional protocol I lists the objectives permissible for lawful attacks. This notion cannot be applied to override specific protections, create exceptions to rules where the text itself does not provide for one. The balance between military necessity and humanitarian considerations is captured in the international court s advisory opinion on the legality of the threat or use of nuclear weapons 34 summarized in the following authoritative way: The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and noncombatant; states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants; it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their 30 ICTY, The Prosecutor v. Stanisla v Galic, Case No. IT-98-29-T, Judgment (Trial Chamber I),5 December 2003,para 58. 31 Hague convention laws and customs of war on land of October 18,1907. 32 Cases: war and national emergency key 9. C.J.S war and national defence S.4 33 Op cit 34 ICJ reports, 1996,pp.226, 257;110 ILR,p.163.
suffering. In application of that second principle, states do not have unlimited freedom of choice of means in the weapons they use. 35 The court emphasized that the fundamental rules flowing from these principles bound all states, whether or not they had ratified The Hague and Geneva conventions, since they constituted intrangressible principles of international customary law. 36 Most importantly being that at the heart of such rules and principles lies the overriding consideration of humanity. 37 In practicality, no military necessity could be raised as a defense against the infliction of unnecessary injury to civilians likewise civilian objects. Justification for military necessity must therefore always ally itself with the proportionality of any attack arising therefrom. PRINCIPLE ON THE PROHIBITION OF SUPERFLOUS INJURY The American English dictionary defines the term superfluous to mean: in excess of what is required or sufficient. While the second word in the principle which is injury is succinctly defined by the black s law dictionary as: anything said or done in breach of a duty not to do, if harm results to another in person.; it further classifies injuries for which one of the classifications is wounding. Any harm or damage; it provides that harm denotes any personal loss or detriments. Further on definitions, the black s law dictionary defines serious bodily injury as serious physical impairment of the body especially bodily injury that creates a substantial risk of death or that causes serious, permanent disfigurement or protracted loss or impairment of the function of any body part or organ. 38 This principle emphasizes the prohibition against inflicting unnecessary suffering and superfluous injury even when exercising the lawful right of attack upon combatants in the act of war. This principle hence prohibits the use of means of warfare which aggravate the suffering of disabled men or render their death inevitable. Article 23 (e) of the Hague Regulations stipulates that it is especially prohibited to employ arms, projectiles or material calculated to cause unnecessary suffering. The provisions of article 35(2) of Additional Protocol I 39 provides for the prohibition as well. The only reality in adequately defining the weapons prohibited in the light of the provisions is to determine the weapons in the light of actual state practice. 40 The implication of this principle in the light of practical modern warfare is that, presently sophisticated means of warfare would fall short of this principle. The obvious technological advancement on means of warfare has greatly reduced the actual need of face to face 35 Shaw, M.N. international law. Cambridge university press, united kingdom 5th edition (2003) p. 1065-1066 36 ibid 37 ICJ reports, 1996,pp.226,257 and 262-.see also the corfu channel case, ICJ report,1949,pp.4,22;16 AD,p.155. 38 Model penal code. Section 210. 0(3) 39 Also contained in the preamble to the 1980 convention on conventional weapons. See M.N. shaw, the united nations convention on prohibitions or restrictions on the use of certain conventional weapons, 1981, 9 review of international studies, 1983, p.109 at p.113. note that employment of poisonous weapons or other weapons calculated to cause unnecessary suffering is stated to be a violation of the laws and customs of war by article 3(a) of the statue of the international tribunal on war crimes in former yugoslara; see report of the UN secretary General, S/25704/and security council resolution 827 (1993), and see also article 20(d) e of the draft code of crimes against the peace and security mankind, report of the international law commission on the work of its fourty-eight session, 1996,A/5/10,p.111-112. 40 M.N Shaw Op cit
equipments; it is very convenient in the circumstance to send missiles, drones, projectiles and their likes to enemy territory. This being the case, the practicality of adherence to the dictates of this principle in modern day armed conflicts is greatly in doubt. 5. PRINCIPLE OF PROTECTION The Black s Law Dictionary simply defines the term protection as the act of protecting. The American English dictionary went further in defining the word protection as: the process of keeping (something or someone) safe; the state of being safe; a means of keeping or remaining safe. The rules on the conduct of hostilities grant specific protection to certain object, including cultural property and places of worship 41, objects indispensable to the survival of the civilian population 42, and works and installations such as dam, dykes, and nuclear generating stations containing dangerous forces 43. This principle enunciates that civilian objects indispensible for the survival of civilian population must be protected. It is prohibited to attack or destroy objects necessary for civilian existence. Such works and installations, as well as cultural property and civil defense personnel and facilities, can be identified by specific symbols. The protections as to cultural property are subject to military necessity. 44 Some objects deemed indispensable to survival of civilian population include food stuffs, agricultural areas for the production of foods stuffs, crops, livestock, drinking water, installation and supplies, and irrigation works, as long as they are not used as sustenance solely for the armed forces or in direct support of military action. 45 The practicality of this principle of protection is always subject to conditions as contained in earlier mentioned provisions of the Geneva Conventions and their Additional Protocols. 46 The reality of war situations is the change of the use of the designated objects of protection as hideouts in certain situations, which exposes the objects otherwise subject to protection to military necessity. The obvious question would then be: Can protection as provided for by the Convention and Additional Protocols be feasible in actual war situations? An object may play a dual role i.e. providing services to civilians and at the same time being use for military operation. International Humanitarian Law is still in dilemma as to how such object should be treated 6. PRINCIPLE OF PRECAUTION The American English Dictionary defines the word precaution as: previous caution or care; caution previously employed to prevent mischief or secure good; A measure taken before hand to ward off evil or secure good or success; A precautionary act. The Nigerian Law Dictionary 47 defines precaution as previous or prior action done with foresight and employed to prevent mischief or to secure good result or advantage or to ward off possible damage or liability. This principle imputes obligation on states to take all feasible precautions to avoid injury or loss to the civilian population. Article 57 Additional protocol I provide that in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. Hence all parties to an armed conflict are required to take specific precautions such as, 41 The 1954 Hague Convention for the protection of cultural property in the events of armed conflict; additional protocol I article 53; additional protocol II, Article 16, 42 Article 54 additional protocol I; Article 14, Additional protocol II. 43 Article 56 Additional protocol I; Article 15, Additional protocol II 44 Article 4 1954 convention; Article 6, 7 Additional protocol I. 45 M.N.Shaw Op cit 46 Article 21 GC I, Article 34 GC II, Article 19 GC IV, Article 65 AP I. 47 Nchi, S.I. The Nigerian Law Dictionary, Tanza Publishing Company, Nigeria, First Edition ( ) p. 254.
when conducting an attack, to verify that targets are military objectives or to give the civilian population an effective warning before the attack. It can also include restrictions on the timing and location of an attack. 48 Article 58 Additional protocol I mandates precaution to be taken by parties to a conflict against the effects of attack. Most particularly, Article 58 (C) requires parties to take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations. Hence Articles 35 (3) and 55 of Additional protocol I prohibits methods and means of warfare that cause widespread, long term and severe damage to the natural environment. 49 Being that the natural environment is incidental to the proper and incidental survival of civilian population during and after armed conflicts, it remains mandatory that adequate precaution be employed by parties to a conflict to secure the civilian lives and living. As a consequence even though there may be at present no convention, protocol or resolution expressly prohibiting the use of nuclear weapons, state practice by inference prohibits the use of nuclear weapons. The practicality of the adoption of feasible measures as required by the provisions of Article 57 Additional Protocol I may be slim as it may be impracticable to give advance warning to civilians before an attack in some circumstances. The dispensing of the requirement to take precautionary measures which is an obvious violation of the principle of precaution can be justified by placing reliance on military necessity. It therefore follows that the best precautionary measure to be adopted in every armed conflict is the adoption of the provisions of Article 58 of Additional Protocol I which requires the separation of protected persons and objects from the military objective during armed conflicts. 7. CONCLUSION The core principles of distinction, proportionality, military necessity, protection, superfluous injury and precaution which are the basis upon which the rules of international humanitarian laws are founded have been seen in the light of their applicability and requirement. It is worthy of note as discussed above that they cannot always be strictly adhered to. They may in some actual situations basically serve as guidelines to parties to an armed conflict in their forms. The difficulty encountered by combatants in adhering strictly to these core principles of IHL has resulted in the high rate of civilian casualties and loss or damage to civilians objects during armed conflicts. It is recommended that parties to an armed conflict should as much as possible observe and apply these principles in good faith and try at all times material to the conflict to strike a balance between military advantage and humanitarian considerations. 48 Ibid. P. 2. 49 ibid