Concept of Good Faith in International Humanitarian Law a Critical Analysis of IHL Instruments and Customary International Law

Abstract

1. The common foundation of compliance with the laws of war, prevalent in different cultures, civilisations and religions, was largely based on the religious teachings. They were followed in good faith, as their source was divine origin. These rules existed in all civilisations and religions, to promote peace and limit violence. The rules applied principles of humanity to regulate the wars. It protected non-combatants, as only combatants and military objects were a target of attack. It prohibited rules and methods of war, which may cause incidental harm to protected people and objects. 2. The principles of distinction, proportionality, precautionary approach and prohibition of indiscriminate attack are based on ‘Principles of Humanity’. IHL imposes obligation on the Commanders to exercise civilian risk mitigation and collateral damage, in good faith, while assessing the military advantage. The Commanders have a duty in good faith to take measures that prevent attack on civilians and civilian objects, or minimize incidental loss of civilian life or damage to civilian objects. Hence, the commanders have a pre-emptive duty in good faith to assess the object of attack, effect of attack and military advantage against incidental loss of civilian life or damage to civilian objects. 3. The IHL principles recognised as customary international law have following consequences: a. They are applicable to all states and to be complied in good faith, irrespective of whether the states have ratified a particular IHL instrument; b. They are applicable to all parties to armed conflict (states/ non-state actors) and are to be complied in good faith, irrespective of the nature of armed conflict whether international armed conflict and non-international armed conflict; and c. The states, particularly the commanding officers in the armed forces of the party to the conflict, have a duty to take decisions in good faith, taking into consideration proportionality and precautions in attack. 4. The principle of good faith as codified in VCLT, is an essential feature of the law of treaties, as it governs their formation, performance, interpretation and termination. Good Faith in international law is largely concerned with the obligations arising from treaties or declarations between the states. The nature of Good faith in international law is understood as: honesty, sincerity, fairness and reasonableness with due regard to the interests of others in general relations of states. In contrast, international humanitarian law is specifically applicable to armed conflict. It regulates the international and non-international armed conflict, by restricting the means and methods of warfare used by the parties to the conflict. It is largely inspired by principles of humanity to protect civilians (non-combatants) and to restrict violence. IHL instruments and customary international humanitarian law, clearly prescribe that, IHL principles are to be observed in good faith by not only states but also military commanders. Before an attack is carried out, the military commanders have obligation to take decisions in good faith to comply with the Principle of proportionality and precautionary approach, not to cause or reduce, incidental loss of civilian life, injury to civilians, damage to civilian objects. The military commander has responsibility to carry out ‘civilian risk mitigation’ against concrete and direct military advantage anticipated. He has duty in good faith to do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective.