This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. The article discusses International Humanitarian Law, including its principles, origin, application, goals and sources, treatment of gender and culture, and FAQs. 

It has been published by Rachit Garg.

Introduction

International Humanitarian Law (IHL) is a compilation of rules that aim to mitigate the humanitarian consequences of armed conflict. It protects those who are not or are no longer engaged in hostilities and limits the means and techniques of warfare. It is also known as the law of war or the law of armed conflict. This law is based on the rules of ancient civilizations and religions, and warfare has always been governed by certain principles and practices. As the international community has developed, a number of governments have contributed to the formulation of those rules. Today, international humanitarian law is regarded as a universal law. It only extends to armed warfare.

The law protects individuals who do not take part in the conflict, such as civilians and medical and religious military personnel. The International Humanitarian Law has established a variety of easily identifiable symbols that may be used to designate protected individuals, places, and items. The emblems are the red cross, the red crescent, and symbols indicating cultural property and civil defence infrastructure. The employment of various weapons, including explosive bullets, chemical and biological weapons, blinding laser weapons, and anti-personnel mines, is prohibited under the legislation.

Let us go through International Humanitarian Law in much more detail below:

International Humanitarian Law (IHL)

International humanitarian law is a part of international law, which is the set of rules that governs state-to-state relations. International law is embodied in treaties or conventions between states, in customary laws, which consist of State practices deemed legally binding by them, and in general principles. The nineteenth-century saw the beginning of the worldwide formulation of international humanitarian law. Based on the harsh experience of modern warfare, states have agreed upon a set of practical guidelines. These laws maintain a delicate balance between humanitarian law and state military needs.

Measures must be taken to guarantee that international humanitarian law is followed. States have a duty to teach their armed personnel and the broader public about their regulations. They must either prevent infractions or penalise those who commit them. They must, in particular, pass laws to prosecute the most serious abuses of the Geneva Conventions and Additional Protocols, which are considered war crimes. States must also enact this law to safeguard the red cross and red crescent emblems. 

Origin and sources of International Humanitarian Law

International Humanitarian Law is based on the same sources as international law in general:

International Convention

The Hague Convention (1907), which has restrictions on the means and techniques of warfare, is one of the two primary treaty origins of International Humanitarian Law. The four Geneva Conventions of 1949 contain a large portion of international humanitarian law. This Geneva Convention, which is considered another treaty origin of IHL, gives protection to specific groups such as vulnerable persons. It protects individuals who have stopped participating, such as injured, shipwrecked, and ill warriors and prisoners of war. Almost every country on Earth has decided to be bound by them. This Convention was formed to avoid future conflicts from having the same level of human suffering as the two World Wars.

The conventions have been expanded and extended by two further treaties: the Additional Protocols of 1977 on the protection of victims of armed conflicts. The two further treaties have been split into Additional Protocol I, which governs international conflicts, and Additional Protocols II, which governs non-international armed conflicts. Other agreements govern the use of certain weapons and military tactics as well as the protection of specific groups of people and property. 

These treaties include:

Internationally, actions have been taken to establish courts to punish offences committed during two conflicts (the former Yugoslavia and Rwanda). The Yugoslav War was an armed conflict of independence but interconnected with ethnic group conflicts, independence wars, and insurgencies conducted in the former Yugoslavia from 1991 to 2001, leading to the breakup of the Yugoslav federation in 1992. There were several reasons for Yugoslavia’s breakup, varying from religious and cultural divides amongst ethnic groups to World War II atrocities committed by both sides to radial nationalist forces. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up in May 1993 to punish individuals who are responsible for war crimes, crimes against humanity, and genocide in these two important situations.

From 1990 to 1994, the Rwanda conflict was a large-scale civil war fought between the Rwandan armed forces, representing the country’s government, and the rebel. The struggle between Rwanda and Africa was based on colonial heritage, chronic poor governance, and ineffective and conflict-generating political systems. In 1994, the International Criminal Tribunal for Rwanda (ICTR) was established to tackle issues such as genocide and war crimes.

The Rome Statute of 1998 established an International Criminal Court to prosecute war crimes and other crimes against humanity. Individuals, governments, and other organizations may all help to ensure that international humanitarian law is followed. International humanitarian law forbids all means and methods of warfare that: fail to distinguish between those fighting and those who aren’t, such as civilians, with the goal of protecting the civilian population, individual civilians, and civilian property; cause unnecessary injury or suffering; or cause severe or long-term environmental damage.

There were war crimes trials in Nuremberg and Tokyo from 1945 through 1948. After World War II, the victorious allied countries formed the first International Criminal Courts to punish high-level political officials and military authorities for war crimes and other atrocities. The French, the Soviet Union, the United Kingdom, and the United States established the International Military Tribunal (IMT) at Nuremberg, Germany, to prosecute and punish the major war criminals of the European axis. International Military Tribunal judged a joint trial of senior Nazi political and military leaders as well as Nazi organisations. A proclamation established the International Military Tribunal for the Far East (IMTFE) in Tokyo, Japan in 1946. This is also an attempt to punish far-eastern war criminals.

new legal draft

International customs

According to the International Committee of the Red Cross (ICRC) on International Humanitarian Law and Customary Law, the majority of treaty law rules have achieved general recognition and have had a major impact on practice. As a result, they have the force of customary law, while others have evolved into it. As a result, they bind all nations, regardless of whether they have signed them, as well as armed opposition organisations in non-international armed conflicts. Because treaty law has been limited in this area, the use of customary international law is especially important for non-international armed conflicts.

General principles of law

A set of jus cogens (compelling law) rules are recognised in international humanitarian law, from which no derogation is permitted. For example, prohibitions on genocide and torture.

Judicial decisions and the teachings 

International Courts have contributed to the interpretation and development of IHL. Secondary sources include judicial pronouncements and the teachings of the most highly skilled professionals.

Key sources of International Humanitarian Law

  • Treaties such as:
    • Hague Convention, 1907
    • Four Geneva Conventions, 1949 (GCs)
    • Additional Protocols I and II, 1977 (AP I and AP II)
  • In a 2005 ICRC report on customary IHL, international customary law was explained or hinted at.
  • Jus cogens rules, such as prohibitions against genocide and torture, are examples of general principles of law.
  • Judicial decisions and teachings, mostly from the International Court of Justice, which include a variety of International Court rulings and advisory opinions.
  • The International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICESCR) conventions on the prevention and punishment of genocide.

Aim of International Humanitarian Law

International Humanitarian Law has been around since the 19th century, although the principles and practices on which it is based are much older. This rule, often known as the law of armed conflict or the law of war, was created to find a balance between humanitarian considerations and the minimization of suffering. The following are the two important aims of International Humanitarian Law: 

  • Protection and assistance are offered to those who have been affected by the conflicts.
  • Warfare techniques and means are regulated.

When does International Humanitarian Law apply

International humanitarian law only applies to military conflicts and covers all parties engaged in an armed conflict. It distinguishes between international armed conflict and non-international armed conflict, the latter of which is subject to a significantly smaller set of established standards. Although official practice continues to uphold this difference, given the nature of today’s conflicts, it has been criticised as arbitrary and unrealistic. International Humanitarian law, on the other hand, has evolved through time to include international armed conflicts more comprehensively. Internal tensions or disturbances, such as isolated acts of violence, are not covered by international humanitarian law. Once a dispute has started, the law applies equally to both parties, regardless of who started the fight.

International armed conflict (IAC)

Armed conflicts involving at least two governments are known as international armed conflicts. They are governed by plenty of restrictions, including those outlined in the four Geneva Conventions as well as Additional Protocol I. In other words, this law applies to wars between sovereign nations as defined by Common Article 2(1) of the Geneva Convention, including direct conflict between states, circumstances in which a foreign power commits soldiers into a country to assist a local movement, and partial or entire occupation of Common Article 2(2) of the Geneva Convention. Additional Protocol I (API) broadens the scope of applicability to armed conflicts in which people fight for their right to self-determination against colonial dominance, foreign occupation, and racist regimes, Article 1(4) of the API.

Israel and the Gaza Strip : Military occupation without the presence

Any land occupied during an international armed conflict is subject to the Geneva Conventions (Common Article 2). A region is deemed occupied when it is placed under the jurisdiction of the opposing force, according to Article 42 of the Hague Convention. The occupation is limited to the region where the opposing force has such authority. Only the land where such power has been created and may be exercised is included in the occupation. As a result, IHL applicable to occupied areas applies when a territory is effectively controlled by hostile and armed forces. However, identifying and confirming such situations can be challenging in practice. 

Although Israel physically withdrew its armed forces from the Gaza Strip in 2005, this was not deemed sufficient to end Israel’s ‘effective control’ over the region, which is typical of occupation. This was due to a number of circumstances, including the reality that the disengagement plan specified that Israel would retain authority over the territory’s boundaries, as well as its airspace and coastline region. Furthermore, Israel retained the ability to enter Palestinian territory at any moment in order to maintain public order. As a result, the UN Secretary-General decided that it is conceivable to remain an occupying power, with all of the responsibilities it entails, without a military presence on the ground.

Non-international armed conflict

Common Article 3 of the Geneva Conventions applies in the case of ‘armed conflict not of an international nature,’ either between a state and a non-state armed group or between non-state armed groups. 

Internal disturbances and tensions, such as riots,  isolated and sporadic acts of violence, are not categorised as non-international armed conflict under Common Article 3 of the Geneva Conventions and Article 1 of the Additional Protocol II. The International Criminal Tribunal for the Former Yugoslavia has implied two criteria that must be satisfied: 

  • The violence must reach a certain level of intensity that distinguishes it from situations of internal disturbance.
  • The parties engaged must show a specific level of organisation.

For the first criterion, considerations to evaluate include the collective form of the fighting and the state’s use of armed force, the duration of the war, the nature of the weapons, the probability of attacks, and the number of victims. For the second criterion, it is expected that government soldiers will automatically satisfy the need. 

In the case of non-state armed organisations, aspects to evaluate include the presence of a command structure and internal rules, as well as the ability to recruit and train new soldiers. Article 1 of Additional Protocol II upheld these conditions but established a higher standard of proof to meet the criterion of the parties concerned, stating that these groupings should be able to govern a portion of a territory. It is also limited to wars involving a state and a non-state armed organisation. As a result, many armed conflicts are similar to those offered by Common Article 3 but not Additional Protocol II.

Purposes and applications of International Humanitarian Law 

  • The International Humanitarian Law (IHL) aims to safeguard people, property, and objects affected by armed conflicts by limiting the rights of parties to use the techniques and means of warfare of their choice.
  • This law only applies to armed conflict situations.
  • This law applies to all parties involved in a dispute.
  • This law establishes states’ obligations and responsibilities to respect, safeguard, and fulfill individuals’ human rights under their control. 
  • This law also allows people and groups to sue the government for specific actions or benefits.
  • This law can be used at times of peace as well as at times of armed conflict, crisis, and disaster.
  • This applies to states as well, but it gives citizens some direct benefits.
  • Internally displaced persons (IDPs) are protected and assisted under guidelines or regional treaties.

Key provisions and principles of International Humanitarian Law

  • Under the principle of distinction, civilians and civilian objects are protected from the harm of military activities.
  • The humanitarian law standards of necessity and proportionality are well-established. The opponent can only use the quantity and type of force necessary to defeat the enemies under this law.
  • Civilians must be treated humanely at all times, according to the concept of humane treatment. Article 3 of the GCs restricts all forms of violence against life and person, including harsh treatment and torture.
  • International Humanitarian Law is founded on the concept of non-discrimination. In the treatment of prisoners of war and civilians, discrimination based on race, nationality, religious belief, or political opinion is illegal.
  • Women and children are given special consideration, respect, and protection. Rape and all forms of indecent assault against women must be prohibited.
  • This law requires occupying powers to guarantee that people in occupied territory have access to basic needs such as food, medicine and health supplies, and services. The intentional starving of people as a means of warfare is prohibited under this law.
  • The law allows the state to treat relief workers with respect and provide them with protection.
  • This law establishes regulations for gaining access to affected communities and delivering humanitarian assistance in international armed situations, including personnel entrance, customs clearance, and relief taxation.
  • This law establishes guidelines for vulnerable groups, including non-discrimination and positive measures.
  • This law also protects political rights such as the right to life, the right to be free from torture, and the right to move around freely.
  • This law safeguards economic and social rights, such as the right to food, shelter, clothes, health, livelihood, and a reasonable quality of life.
  • There is no clear mention of international relief in this law.
  • This law allows states to restrict some civil and political rights in the event of a public emergency that poses a national security threat, such as a war. Certain rights, such as the right to life, are unaffected by derogations.

Implications for humanitarian assistance

  • Humanitarian assistance refers to the legal requirement and main responsibility of parties to the conflict to provide humanitarian aid to populations under their control. IHL enables humanitarian organisations to adopt relief actions under specific scenarios for the benefit of efficiency.
  • The responsibility of controlling authorities to assist and collaborate with relief programs is unconditional under times of occupation. Governments cannot deny humanitarian help arbitrarily as long as there is a need for humanitarian assistance and organisations and rescue efforts function in compliance with humanitarian standards. This is in addition to arguments for the recognition of a right to humanitarian assistance.
  • Specific provisions are accessed as an implication of humanitarian assistance with delivery of help and protection of humanitarian workers, to reduce “red tape” and allowing for the quick delivery of relief to protected people.
  • The International Humanitarian Law does not specifically address the question of humanitarian assistance access. Others argue that the right to life could involve a basic right to assistance and that the different economic and social rights guaranteed provide the legal framework for persons to claim the right to humanitarian assistance. States would have equal duties to give such assistance.

How gender and culture are treated in International Humanitarian Law

Gender 

Although IHL has different provisions in the GCs and APs that promote formal equality and non-discrimination, protection must be delivered without any bias based on gender. In the case of female prisoners of war, for example, according to GC III Articles 14 and 16, women are obliged to receive treatment equal to that granted to males. IHL mandates special protections for women in addition to claims to formal equality. For example, female prisoners of war are given separate dormitories from men as per GCIII, Article 25, and sexual violence against women is prohibited (GC IV, Article 27, Additional Protocol I Article 76(2); APII, Article 4(2)). However, the reality of men’s and women’s lived experiences of conflict has revealed some of IHL’s gender limitations. 

Many have already suggested that the subject of sexual violence against males in conflict has gotten little attention. When it comes to the application of IHL to gender perspectives, interpretations of IHL must take into account the unique experiences of both men and women in conflict situations. ‘Soft law’ has been used to strengthen women’s protection in armed conflict. This includes UN Security Council Resolutions 1888 and 1889 (2009), which attempt to improve the safety of women and children during armed conflict. Sexual and gender-based crimes committed during the armed conflict have been successfully prosecuted by international criminal tribunals. There is still an urgent need to further expand gender constructions in international humanitarian law.

Culture

International human rights have not been subjected to the same cultural relativism issues and criticisms as IHL. The GC and AP are relatively new in modern codifications, and European names are not new. However, the underlying concepts are not new, and laws pertaining to warfare can be found in many civilizations. The ICRC has discovered that traditional and long-standing traditions exist in numerous cultures that date to the current IHL but are generally consistent with it. Local and cultural customs that are addressed in IHL must be respected. IHL must make certain that culture does not have a negative impact on what is important.

Conclusion

International Humanitarian Law is one of the most essential tools available to the international community for ensuring the safety and dignity of people during times of war. This law aims to maintain a perception of humanity in the midst of battle, with the guiding premise that even war has boundaries. This law guides how parties to a dispute conduct hostilities and protects those who are in enemy hands. It also forbids or restricts the use of especially cruel weapons or weapons that do not differentiate between fighters and civilians. It also requires parties involved to care for the injured and sick, as well as to safeguard medical professionals.

Frequently asked questions (FAQs)

What are the main sources of International Humanitarian Law?

The main sources of international humanitarian law are treaty law and customary international law. There are two major treaties, one of which being the Hague Convention of 1907, and the four Geneva Conventions of 1949. Additionally, the 1977 Additional Protocols are written sources via which countries legally set rules. 

What is the objective of International Humanitarian Law?

The objective of international humanitarian law is to reduce the suffering caused by conflict and minimize its consequences. The two objectives of this law are to protect and assist persons impacted by wars, as well as to regulate the means and tactics of war.

Who is protected under International Humanitarian Law?

Under international humanitarian law, the whole civilian population is protected from armed conflict or military conflict. It also protects civilians, medical and religious military professionals, and those who do not engage in the fight. This law also protects people who have stopped to participate, such as wounded, shipwrecked, sick warriors, and prisoners of war.

Who implements International Humanitarian Law?

A group of specialists to implement international humanitarian law has been formed by a National committee or commission on IHL, which consists of many States.

When and to whom does International Humanitarian Law apply?

Only armed conflict is covered under IHL, which begins when the conflict begins and applies equally to all parties, regardless of who began the fighting.

What is the principle of humanity in International Humanitarian Law?

The principle of humanity prohibits the cause of any injury that hurts, harms, or destroys that is not necessary to achieve a conflict’s lawful goal.

Who enforces international humanitarian law?

The International Committee of the Red Cross as a controlling authority enforces international humanitarian law.

What does the IHL Red Cross mean?

The International Humanitarian Law (IHL) programme of the American Red Cross enables young people ages 13 to 24 to learn about international humanitarian law, the body of law that controls armed conflict.

References


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