By Bakampa Brian Baryaguma
[Dip.
Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak]
bakampasenior@gmail.com; www.huntedthinker.blogspot.ug
August
2022
1.
Introduction
1.1.
Definition of
International Humanitarian Law
International humanitarian law (hereinafter “IHL”) is a branch of
international law that deals with the conduct of parties to an armed conflict,
dealing with such issues as the conduct of hostilities, combatant and prisoner
of war status and the protection of the Red Cross and Red Crescent emblems.[1] Hence,
a set of international rules, established by treaty[2] or custom, specifically
intended to solve humanitarian problems directly arising from international or
non-international armed conflicts, have been developed and designed to limit
the use of violence in armed conflicts by sparing those who do not or no longer
directly participate in hostilities and restricting violence to the amount
necessary to achieve the aim of the conflict, which – independently of the
causes fought for – can only be to weaken the military potential of the enemy.[3]
From the foregoing, the basic principles of IHL are as follows:
(a)
the distinction between civilians and combatants;
This principle demands that the two should always be separated by
reserving violence for combatants, while sparing civilians from it.
(b)
the prohibition to attack those hors de combat;
This means those that are out of action due to injury or damage. The principle
requires that those who no longer pose serious threats should not be killed, injured
or damaged further.
(c)
the prohibition to inflict unnecessary suffering;
This prohibition promotes a humane approach to war, by forbidding
anything which causes excessive – and therefore unnecessary – suffering to
others in the conflict.
(d)
the principle of necessity;
This principle demands that any force used must be necessary in the
circumstances.
(e)
the principle of proportionality.[4]
This principle requires that the force used should be commensurate to the
threat confronted with. Use of excessive force is prohibited.
IHL applies to state and non-state actors – governments, rebel groups and
individuals.[5]
1.2.
About Sun Tzu
Sun Tzu was a Chinese general, military strategist, writer and
philosopher who lived in ancient China, in approximately 544-496 B.C.[6] He was
active as a general and strategist, serving King Helü of Wu in the sixth
century B.C., beginning around 512 B.C.[7]
Sun Tzu is traditionally credited as the author of a book entitled The Art of War, an influential work of
military strategy that has since affected philosophy and military thinking.[8]
His works focus much more on alternatives to battle, such as stratagem, delay,
the use of spies and alternatives to war itself, the making and keeping of
alliances, the uses of deceit and a willingness to submit, at least temporarily,
to more powerful foes in order to avoid confrontation.[9] The book outlines
theories of battle, but also advocates diplomacy and the cultivation of relationships
with other nations as essential to the health of a state.[10]
The Art of War has been praised
and employed in East Asian warfare since its composition.[11] Sun Tzu's work grew
in popularity and saw practical use in the Western world and is said to have
been the secret of Napoleon Bonaparte’s military genius and prowess.[12] The
book continues to remain an indelible influence in many contemporary competitive
endeavors across the modern world beyond military strategy and warfare, including
culture, politics, business and sports.[13]
2.
Contribution
of Sun Tzu in International Humanitarian Law on Armed Conflict
Sun Tzu’s contribution in this field is evident in the manner in which
his teachings, which are immortalized in his book, The Art of War, are in consonance with IHL rules and principles.
1.
Modifying plans according to circumstances
Sun Tzu stated that in warfare, plans should be modified according to
favorable circumstances.[14] The idea is to avoid unnecessary confrontations
and fighting that inevitably result into death and injury of troops and wastage
of other resources.
This teaching is in line with the IHL prohibition of inflicting
unnecessary suffering and the principle of necessity.
2.
Avoiding destroying the enemy
Sun Tzu said that in the practical art of war, it is not so good to
shatter and destroy the enemy’s country, army, regiment, detachment or company,[15]
reasoning that that the best thing of all is to take it whole and intact.[16]
He said that supreme excellence consists in breaking the enemy’s resistance
without fighting.[17] The idea is to avoid total annihilation of the enemy or a
scorched earth policy.
This teaching is in line with all the principles of IHL in so far as it
ensures that civilians are separated from combatants, the injured are not
attacked, unnecessary suffering is avoided, combat is restricted to when it is
necessary and that the force applied corresponds with the level of threat
faced.
3.
Avoiding prolonged warfare
Sun Tzu said that there is no instance of a country having benefitted
from prolonged warfare.[18] He therefore advocated ending wars as soon as
possible to reduce their resultant evils, avoid exhausting one’s strength and prevent
straining the resources of the state.[19]
These observations are in line with IHL principles of necessity and prohibiting
infliction of unnecessary suffering.
4.
Knowing when to fight and when not to fight
According to Sun Tzu, one of the essentials for victory is knowing when
to fight and when not to fight.[20] If it is to your advantage, move forward and
attack;[21] but if it is not, stay where you are and defend.[22] Sun Tzu asserted
that he who knows this will win. The lesson is to be selective in choosing
one’s battles and opponents.
This teaching is in line with the IHL rule of prohibition of inflicting unnecessary
suffering and the principle of necessity.
5.
Avoiding the strong and attacking the weak
Sun Tzu said that you can be sure in succeeding in your attacks if you
only attack places which are undefended;[23] and that in war, the way is to
avoid what is strong and strike at what is weak.[24]
This teaching is in tandem with the IHL principles of necessity and
prohibition of inflicting unnecessary suffering.
6.
Careful planning before battle
Sun Tzu taught that the general who wins a battle makes many calculations
in his temple before the battle is fought and that the general who loses a
battle makes few calculations beforehand;[25] asserting that by looking at
this, he can foresee who is likely to win or lose. The idea is for the
commander to ascertain the adequacy of his or her chosen strategy and tactics
for fighting the enemy, as well as ensuring fitness and suitability of his or
her rank and file for the task ahead.
This teaching augurs well with every IHL principle because it must be clear
that civilians and injured combatants will not be attacked, unnecessary
suffering will be avoided, that the force used is necessary and in the right
proportion.
3.
Conclusion
International humanitarian law regulates the conduct of warfare by
protecting persons and property that are, or may be affected by an armed
conflict and limits the rights of the parties to a conflict to use methods and
means of warfare of their choice.[26] Limitation
is the gist of the law in this regard, underpinned by the understanding that
the conduct of armed conflict should not be a do or die matter i.e. a situation
where anything and everything goes.
Reading Sun Tzu’s book, The Art of
War, one finds that the theme of limitation
ebbs throughout the text. Sun Tzu was preoccupied with establishing limits or
bounds of reason within which wars should be fought, including adherence to
moral law as a constant governing factor in planning and executing wars.[27] His
ideas are revered and keenly followed everywhere in the world today. In this
regard therefore, Sun Tzu contributed immensely to the development of
international humanitarian law on armed conflict.
Notes and References
[[1]]
International Committee of the Red Cross, ‘International Humanitarian Law and
International Human Rights Law: Similarities and Differences’ (2003), at 1.
[2] IHL main treaty sources applicable in international armed conflict
are the four Geneva Conventions of 1949 and their Additional Protocol I of 1977
i.e Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977. The conventions
are:
(i) Geneva
Convention for the Amelioration of
the Condition of the Wounded and
Sick in Armed Forces in the Field of 12 August 1949 (Geneva Convention
I);
(ii) Geneva
Convention for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea of 12 August 1949 (Geneva Convention II);
(iii) Geneva
Convention Relative to the Treatment
of Prisoners of War of August 12,
1949 (Geneva Convention III); and
(iv) Geneva
Convention Relative to the
Protection of Civilian Persons in
Time of War of 12 August 1949 (Geneva Convention IV).
The main treaty sources applicable in non-international
armed conflict are article 3 common to the Geneva Conventions (i.e.
Common Article 3) and Additional Protocol II of 1977 i.e. Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II), 8 June 1977, by
virtue of which IHL also binds non-state armed groups during armed conflicts.
[3] International Committee of the Red Cross, ‘Fundamentals of IHL’
(2022). Accessed online at https://casebook.icrc.org/law/fundamentals-ihl,
on 18 June 2022, at 10:21Hrs.
[4] See ibid.
[5] International Committee of the Red Cross, IHL & IHR, supra note
1, at 1-2.
[6] Wikipedia, “Sun Tzu” (2022). Accessed online at https://en.wikipedia.org/wiki/Sun_Tzu,
on 18 June 2022, at 09:50 Hrs.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Sun Tzu, The Art of War
(translated by James Clavell) (Rev. 2006), at 11.
[15] Ibid., at 18.
[16] Ibid.
[17] Ibid.
[18] Ibid., at 15.
[19] Ibid., at 14.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid., at 32.
[24] Ibid.
[25] Ibid., at 12-13.
[26] International Committee of the Red Cross, IHL & IHR, supra note
1.
[27] Sun Tzu, supra note 14, at
9.
