This article has been written by Sneha Jaiswal, currently pursuing BA LLB (Hons.) from Christ (Deemed to be University) Delhi NCR. This article discusses an analysis of the international humanitarian law with regard to its implementation and it clears the ambiguity between the two most baffling concepts of international humanitarian law and international human rights law.
Table of Contents
The world as we know it has been and continues to be confronted with the evils of warfare. Throughout human history, groups, collectivities, tribes, states, and others have struggled for resources, land, religion, and political systems. Countless conflicts have happened or are now happening in modern global history. Every country sees the atrocities of wars and the misery that they cause on a daily basis; in addition, conflicts display the death and devastation that they bring as a result. During an armed conflict, International Humanitarian Law governs the conduct of hostilities and the protection of people. The use of force, on the other hand, is not governed by international humanitarian law.
International Humanitarian Law
International humanitarian law is a system of regulations aimed at limiting the impact of armed conflict for humanitarian reasons. It safeguards those who are not or are no longer involved in hostilities, as well as limiting the strategies and techniques of conflict. Its degree is, thusly, subject matter restricted to circumstances of armed clash. International humanitarian law focuses on two areas to attain its main objective: the protection of individuals and limitations on the means and tactics of warfare. The Charter of the United Nations forbids the use of force. International humanitarian law falls under the category of jus in bello, which must be distinguished from jus ad bellum. In armed conflict, jus in bello is deemed to define the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in regard to each other and to protect persons whereas Jus ad bellum is traditionally perceived as the body of law which provides grounds justifying the transition from peace to armed force.
Need of International Humanitarian Law
The use of force is prohibited. The threat or use of force against other states is expressly prohibited by the United Nations Charter. Since 1945, war has no longer been an acceptable means of resolving inter-state disputes.
The purpose of both international human rights law and international humanitarian law is to protect everyone’s dignity and humanity. The General Assembly, the Commission on Human Rights, and, more recently, the Human Rights Council have all held the view that in armed conflict, parties to the conflict have legally binding obligations for the rights of those impacted by the war. Despite their differences in scope, international human rights law and international humanitarian law both provide a set of protections to those caught up in armed conflicts, whether they be civilians, those who are no longer actively involved in hostilities, or active participants. Both sources of law applicable to situations of armed conflict provide complementary and mutually reinforcing protection, as recognized by international and regional courts, as well as United Nations agencies, treaty bodies, and human rights special processes.
Nonetheless, in every armed conflict, international humanitarian law must be enforced equally by all parties, regardless of whether their cause is justified. This equality between the belligerents also distinguishes an armed conflict, which is governed by international humanitarian law, from a crime, which is governed only by criminal law and the principles of human rights legislation on law enforcement. In many armed conflicts, serious violations of international humanitarian and human rights law are widespread. Some of these transgressions may even be considered genocide, war crimes, or crimes against humanity in specific circumstances.
Why discuss international norms governing armed conflicts and their consequences when the Charter prohibits the use of force
The use of force is not fully prohibited by the Charter. States do maintain the right to defend themselves, individually or collectively, against attacks on their independence or territory in retaliation to the use of lawful force or unlawful force.
- The prohibition on the use of force in the Charter does not apply to internal armed conflicts or civil wars.
- The use of force by member states in collective action to maintain or restore international peace and security is permitted under Chapter VII of the Charter.
- Despite the Charter of the United Nations prohibiting wars, they do occur, as we all know. Armed conflicts are an unfortunate fact in today’s society.
The conclusion is pretty much unavoidable, international regulations are required to limit the impact of conflict on people and property, as well as to safeguard certain categories of particularly vulnerable people. That is the purpose of international humanitarian law, which is primarily expressed in the Geneva Conventions and its Additional Protocols, with a significant corpus of customary law serving as a crucial additional source of law.
No more ambiguity between International Human Rights Law and International Humanitarian Law
For many years, it was considered that the distinction between international humanitarian law and international human rights law was that the international humanitarian law applied in situations of armed conflict whereas the international human rights law applied in times of peace. However, modern international law accepts that this distinction is erroneous. Indeed, these days, it is widely acknowledged by the international community that human rights obligations got their origin from the recognition of the inherent rights of all human beings. International human rights legislation continues to apply in conditions of armed conflict, notwithstanding the fact that these rights may be harmed both in times of peace and in times of war.
Furthermore, there is nothing in human rights accords that says they aren’t enforceable in times of armed conflict. As a result, in times of armed conflict, the two bodies of law, international humanitarian law, and international human rights law are seen as complementary sources of responsibilities. While the principles of international human rights and international humanitarian law appear to be extremely different on the surface, they are extremely similar in essence and both protect persons in comparable ways. The most significant substantive difference is that the protection of international humanitarian law is largely dependent on the difference between unidentified civilians and combatants in international human rights law.
The code of conduct to avoid armed conflict
Insofar as international treaties control the conduct of armed hostilities and place constraints on the use of certain weapons, they are dealing with the development, use, and stockpiling of certain weapons that are also deemed as a part of international humanitarian law. These are some of the conventions which maintain a code of conduct related to weapons and military tactics and defend certain categories of people and goods.
- Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction also referred to as ‘Ottawa Convention’ on anti-personnel mines;
- Convention on Cluster Munitions;
- Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction;
- Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction also referred to as Chemical Weapons Convention;
- Treaty on the Non-Proliferation of Nuclear Weapons;
- Convention for the Protection of Cultural Property and its two protocols;
- Biological Weapons Convention;
- Conventional Weapons Convention and its five protocols which may be deemed to be excessively injurious or to have indiscriminate effects;
- Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
Under international humanitarian law, the International Committee of the Red Cross (ICRC) has a unique function. During international armed conflicts, it is obliged under the Geneva Conventions to visit detainees, coordinate relief missions, assist in a family reunion, and engage in a variety of humanitarian tasks. They also provide it with the authority to provide similar services in non-international armed situations. The International Committee of the Red Cross has a well-established role in the interpretation of international humanitarian law and is tasked with promoting its faithful application in armed conflicts, as well as identifying and reporting violations of the law, and contributing to its understanding, dissemination, and development of the law.
International Humanitarian Law limits armed conflict
Humanitarian law has evolved into a complicated set of regulations that address a wide range of concerns. International humanitarian law restricts the use of violence in armed conflicts in order to protect individuals who do not or no longer directly participate in hostilities, while also restricting violence to the level required to damage the enemy’s military capability.
An international armed conflict occurs when one or more states use military force against another, regardless of the causes of the war or the severity of the conflict. There is no need for a formal declaration of war or acknowledgement of the situation. The existence of an international armed conflict, and as a consequence, the possibility to apply International Humanitarian Law to this situation, depends on what actually happens on the ground. It is based on true circumstances.
International humanitarian law achieves a balance between humanity and military necessity in restricting violence and regulating the treatment of those impacted by armed conflict in other ways. International humanitarian law provides for the protection of a number of civil and political rights like the right to life of enemies placed out of action due to injury or damage or judicial guarantees, economic, social, and cultural rights like the right to health, and the right to food, etc. and group rights such as the right to a healthy environment. This is especially true concerning the injured and ailing people, who must be respected, safeguarded, gathered, and cared for. Another essential concept that should be stated is that international law applies to all armed conflicts, regardless of their origin or cause. They must be respected in all situations and with regard to all people who are protected by them, without exception. Discriminatory treatment of war victims based on the notion of just war has no place in current humanitarian law. While the following broad principles apply to all forms of armed conflict, there are two sets of particular rules: one for international armed conflicts and the other for non-international armed conflicts or civil wars.
Implementation of International Humanitarian Law
Sadly, there are numerous incidents of international humanitarian law violations. Civilians are increasingly becoming conflict victims. However, there have been significant instances when international humanitarian law has made a difference in terms of safeguarding civilians, prisoners, the ill, and the injured, as well as limiting the use of barbarous weapons. Given that this corpus of legislation applies only at times of extreme violence, enforcing it will always be a challenging task. Nonetheless, achieving effective compliance is as important as ever.
The general mechanisms of international law for ensuring respect and sanctioning breaches are even less satisfying and efficient when it comes to the execution of international humanitarian law than they are for other aspects of international law. They are intrinsically insufficient and, in some situations, counterproductive in armed confrontations. It would be incredible if, at least in international armed conflicts, problems originating from violations of International humanitarian law could be resolved peacefully. Indeed, international humanitarian law applies when two states are involved in an armed conflict, demonstrating that they are unable to resolve their differences peacefully.
Only in international military conflicts, a state can be directly harmed by another state’s breach of international humanitarian law. In such confrontations, the damaged state has the most hostile relationship with the violating state possible, resulting in warfare. As a result, it lacks the numerous mechanisms for preventing or responding to violations of international law that are often used to guarantee that international law is followed. The use of force was the most severe response possible to the damaged State under customary international law.
Except in response to a forbidden use of force, it is essentially illegal. Furthermore, a state that has been harmed by a breach of international humanitarian law logically no longer has the option of retaliating with force, because such a breach can only occur in an armed conflict, in which both parties have previously used force. Within the established framework of international law enforcement, the aggrieved State’s only recourse would be an extra use of force consisting of a breach of international humanitarian law itself.
The Third States may respond in one of two ways in the event of an armed conflict between two states. They can choose sides for simply political reasons or, if connected to international law, for reasons drawn from jus ad bellum, which is traditionally perceived as the corpus of law that gives grounds for the move from peace to military force. They will thus assist the aggressor’s victim, regardless of who breaches the jus in bello, which defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in regard to each other and to protected persons. Other third states may opt to remain neutral. They can assure respect for international humanitarian law as neutrals, but they will always guarantee that their commitment to respect for international humanitarian law does not interfere with their fundamental decision not to take sides.
What should be done to put the law into effect
It is necessary to take steps to guarantee that international humanitarian law must be followed to avoid warfare. States have a responsibility to teach their armed personnel and the broader public about their regulations. They must either prevent or punish violations if they do occur. They must, in particular, pass legislation to punish the most egregious breaches of the Geneva Conventions and Additional Protocols, which are considered war crimes. The States must also pass laws protecting the red cross, red crystal, and red crescent emblems. These are symbols of protection that international law grants to the injured and sick, as well as to those who care for them, in armed combat. Significant measures are required at an international level: tribunals should be created to punish acts committed in armed conflicts. The 1998 Rome Statute established an International Criminal Court with the mission of prosecuting crimes such as war crimes. We may all make a significant contribution to conformity with international humanitarian law, whether as people or as governments and other organizations.
The goal of international humanitarian law is to reduce the suffering caused by conflict and mitigate its consequences. Its regulations are the product of a delicate balance struck between the demands of battle or military necessity on one side and the laws of humanity on the other. humanitarian law is a delicate subject that is never tampered with. It must be honored in all circumstances for the sake of the survival of human ideals and, in many cases, simply to safeguard life. Each of us may contribute to a deeper knowledge of the humanitarian law’s major aims and essential beliefs, paving the path for greater respect for them. Better adherence to humanitarian law by all states and participants to armed conflicts will go a long way toward making the world a more humane place.
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