aditi

In this blogpost, Aditi Sampat, Advocate, Nabco Enterprises Pvt Ltd and a student of the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about principles of International Humanitarian Law.

International Humanitarian Law is that part of Public International Law which is primarily concerned with the rules and regulations that should be followed during an armed conflict. In a nutshell, humanitarian law is concerned with the protection of people who not a part of the hostilities of war and also with the warfare techniques employed by the States who are at war.

The growing humanitarian concerns of the late 20th and present 21st century have posed concerns arising due to armed conflicts which have been the reason for humanitarian law gaining considerable importance in recent times. The Committee of Red Cross (ICRC), in the wake of these concerns, has set up rules and regulations which would be binding on the States, in order to resolve the consequences of war irrespective whether they are international or internal to a particular State. These rules and regulations restrict the parties to a war to employ those procedures in times of engagement in a war which would not cause considerable loss to life and property.[1]

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The Rules and regulations which have been laid down in International Humanitarian Law, primarily through Treaties and Conventions, govern the relationship between States. The Rules are legally binding on the States and have to be adhered to under all circumstances.[2]

Objectives of Humanitarian Law – Striking a balance between Military Necessity and Humanitarian Considerations: The objective of Humanitarian Law in addition to saving lives is also to treat every individual with respect. The pre-requisite for achieving military goals would require States to comply with the rules and regulations set forth by Humanitarian Law. The norms of distinction and proportionality enhance the objective of International Humanitarian Law in achieving a balance between the military necessity and humanitarian considerations.[3]

Principles of Humanitarian Law 

  1. Principle of Distinction – Parties to a war should have the ability in order to distinguish combatants from the civilians and ensure that they should target only the former.
  2. Principle of Necessityand Proportionality – It refers to the ability of restraint in the amount of force applied in defeating the enemy that should be shown by parties to an armed conflict. Under no circumstances should there be excessive loss of life in order to achieve the goals set forth due to military
  3. Principle of Humane Treatment – Humanitarian Law has made it mandatory that all civilians are to be treated humanely and with respect at all times. It also aims to prohibit violence against the life of a civilian who is not a part or is no longer a part of the war.
  4. Principle of non-discrimination – The fundamental rights of every person shall be secured whether or not he is involved in the war.
  5. Preferential treatment to Women and Children – Preferential treatment to women and children to ensure respect and protection of the same from the effects of war. The Law prohibits children below 18 years from taking part in the hostilities.[4]

International Humanitarian Law – Its Origin.

The Battle of Solférino of 1859 and subsequent the Geneva Convention of 1864 led to the establishment of International Red Cross Committee. Twelve nations signed the Convention on 22nd August 1864 in which they agreed to provide assistance by expediting supplies to medical personnel for their use. They also adopted a special emblem of the Red Cross Committee.

The Hague Convention was developed alongside the Geneva Convention. It laid down the rules and regulations governing conduct of war. The treaties which emerged from The Hague Peace Conferences in 1899 and 1907 laid down restrictions on usage of armaments, such as the use of air bombs and chemical warfare, realising massive destruction caused by the same. The formation of the League of Nations in 1919 has been attributed to the need to create International Laws with respect to armed conflicts.

The Hague Convention – Geneva Protocol permanently banned chemical and biological warfare because it was anticipated that they had a potential to cause high degrees of destruction. The Protocol has been in force from 8th February 1928.

The factor that has differentiation of the Geneva Convention from the Hague Convention is that the former was primarily concerned with the treatment of soldiers whereas the latter is concerned with the treatments of civilians and also mentioned explicitly about the rules regarding the permitted conduct during a war.[5]

Analysing a War

Broadly, there are two branches of analysing a war:

  1. The reasons for fighting a war.
  2. How a war is fought.

Theoretically, it is quite possible that a war may be justified and fought without adhering to the rules. On the other hand, it may be quite possible that a war may be totally unjustified where the parties to the war adhere to the rules. Due to the above two possibilities, there is no link whatsoever between the two branches of Humanitarian law.

Jus Ad Bellum as a branch of Humanitarian Law defines just reasons for which a state may fight a war and also describes the criteria that justifies the reasons for the conflict. The principal modern source of Jus Ad Bellum finds its place in the Charter of United Nations as–

  1. “All members shall refrain in the international realm from the threat or the use of force against the territorial integrity or political independence of any state, or in anyother manner inconsistent with the purposes of the United Nations.”[6]
  2. “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”[7]

Jus in Bello, contrary to Jus Ad Bellum, deals with the rules and regulations of war once it has begun. This branch is not concerned with the fact or the reasons as to whether the war is justified or not.

The basis of this Law is primarily:

  1. Customary Law
  2. Rules relating for conduct of hostilities as set by the Hague Regulations of 1899 and 1907.
  • The Geneva Conventions relating to the protection of victims and civilians.
  1. Additional Protocols of 1977 which defined the terms such as combatants and prescribed the rules to prevent indiscriminate attacks.

The International Red Cross Committee refers to Jus in Bello as Humanitarian Law. The Military scholars, who are more traditional in their outlook have a contrary opinion and refer to the customs and practices of a war as the source of the laws of war. Hence they refer to the Law of Armed Conflict or Law of War as International Humanitarian Law.[8]

Types of Conflict under Humanitarian Law

Broadly, Humanitarian Law recognizes three types of armed conflict. They are as follows:
i) International armed conflict –An International Armed Conflict refers to “all cases of declared war or of any armed conflict that may arise between two or more high contracting parties, even if the state of war is not recognized, the convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party even if the said occupation meets with no armed resistance.”[9]

ii) Internationalized armed conflict – Internationalized Armed Conflict is a relatively new classification under Humanitarian This refers to a situation when a war starts between two different groups who are fighting internally, but are supported by two different states.[10] This type of conflict occurred in Republic of Congo in 1998.

iii) Non-international armed conflict –Non-International armed conflict refers to ‘‘armed conflicts that are non-international in nature occurring in one of the High contracting parties”.[11] A requirement of this type of conflict is one of the parties should not be involved with the Government. In addition, Common Article 3 also mandates that this type of conflict does not include riots and sporadic acts of violence. The difference between a disturbance and armed conflict has not been defined in concrete sense. Since the definition does not finds its place in concrete terms, it differentiate acts of mere disturbance from armed conflict, reliance has been placed on the political will to distinguish the same.[12]

Modern law defines two features of a conflict – the intensity of violence and the level of organisation among the parties to the conflict. Non-fulfilment of one of the features would be mere disturbance. The most visible example of non-international armed conflicts is internal conflicts wherein there is an increased tension and acts of violence within the country for a specified duration of time.[13]

Applying Humanitarian Law

Humanitarian Law mandates the rules and regulations for protection to be provided under the following situations:

  1. International Armed Conflict – Protection is given to the following persons:
  • i) Land warfare – Wounded or sick military personnel and members of the armed forces’ medical services
  • ii) Naval Warfare – wounded, sick or shipwrecked military personnel and members of the naval forces’ medical services;
  • iii) Prisoners of war
  • iv)Civilian population which including foreign civilians, civilians in territories which have been occupied, medical and religious personnel and civil defence units[14]

2. Non-International Armed Conflict – Apart from the armed forces, protection is given to the following persons:

  • Wounded or sick fighters
  • People deprived of their freedom as a result of the conflict.
  •  Civilian population.
  • Medical and Religious Personnel[15]

Due importance is to be given to the fact that the conditions applicable under Protocol II supersede those under Article 3. Hence, International Humanitarian Law also becomes applicable to the armed forces, whether they are actively involved or not in the conflict.

In conclusion, internal armed conflicts come under State sovereignty and hence the State is the authority to devise rules and regulations in such type of conflicts which may not be in agreement with the rules and regulations to be followed in an armed conflict. However, a minimum standard has been prescribed pertaining to the rules and regulations during a conflict from which is binding on the States.[16]

Rules and Regulations regarding assistance provided to the Victims of Armed Conflict and Restoration of Family links.

The States who have become a party to the Conventions have agreed that the victims have a right to receive basic necessities for their survival. The Additional Protocols of 1977 further enhanced these rights. Thus, in an armed conflict, the right of assistance includes:

  1. Consignments necessary for the survival of the civilian be passed without any hurdles.[17]
  2. Adequacy of supplies for the entire population should be ensured by the Occupying State.[18]
  3. In the event of inadequacy of supplies, relief from outside sources must be taken without any discrimination and without inferring the same as an act of interference.[19]

On the other hand, in a non-international armed conflict, relief measures in the form of essential supplies for the civilian population must be undertaken. It is mandatory to obtain consent of the warring parties before the relief measures are undertaken. In modern times, the State must not ignore its duty to provide humanitarian relief to all civilians.[20]

Rights of Refugees and Internally Displaced Persons.

Refugees are defined as those residents of a particular State who have left their residential State due to the presence of a conflict. They are at the highest priority in the list of people who are given protection by the United Nations High Commissioner for Refugees. Special Protection is provided to refugees which recognizes the vulnerability of the refugees, in the absence of protection of their State of residence.[21]

Internally Displaced Persons are those civilians who have not left their residential State in the event of a conflict. They are considered as civilians and are protected by human rights law which is legislated by the State and also by Humanitarian law in the event of on-going armed conflict.  International humanitarian law has laid down that no civilian shall be compelled to leave his place of residence unless the military reasons so demand. In the event that the civilians are Internally Displaced persons, they have to be protected from the hostilities of the war by the rules and regulations laid down in humanitarian law.

The following rules laid down in Humanitarian Law expressly prohibit the following:

  1. Attacking civilians or civilian objects or conducting hostilities indiscriminately.
  2. Destroying objects necessary for the survival such as food to be provided to the civilian population.
  3. Destruction of residences during the armed conflict.[22]

Implementing International Humanitarian Law.

The objective of Humanitarian law is to mitigate the consequences of war particularly on those who are not a part of the armed conflict. Additionally, Humanitarian law has also laid down rules and regulations regarding the process to be followed during an armed conflict which is binding on all the States. Implementing Humanitarian law is a big challenge for the nations today.

The term “implementation” seeks to cover all the means which are required to taken to ensure that all the rules under Humanitarian Law are adhered to fully. Adoption the rules and regulations during both war and peace time is required, so that both the civilians and military personnel become familiar with the same and thereby are able to prevent violations of humanitarian law.

The rules and regulations set under Humanitarian Law are binding on all States. Apart from the States, bodies such as National Red Cross or Red Crescent Society have the objective to ensure that there are no violations in the rules and regulations set forth by Humanitarian law. Measures to deal with any violations which may have taken place during a war is another objective of the Red Cross and Red Cresent Society. Some of the important measures which can be taken to implement the rules and regulations effectively are:

  1. Translation of Conventions and Protocols into national language so that civilians and military personnel become familiar with the same.
  2. Passing of criminal legislation particularly dealing with war crimes.
  3. Identification of persons, places and property to be protected by law.
  4. Establishing and regulating voluntary Aid Societies such as National Red Cross and Red Crescent.
  5. Preventing the misuse of emblems provided in the Conventions and Protocols.
  6. Guaranteeing fundamental rights to protected persons during armed conflict.
  7. Appointment of trained and qualified personnel in Humanitarian law, particularly relating to the appointment of legal advisors in the armed forces.
  8. Taking the aid of Humanitarian Law whilst selecting military sites, whilst developing military weapons and whilst employing military tactics.
  9. Measures to establish hospital zones and security zones.

Most of these measures would require the legislature to legislate the rules and regulations, while others require awareness through educational and training programs. Nevertheless, all the above measures are a crucial requirement for the effective implementation of International Humanitarian law.[23]

Humanitarian Law, Human Rights Law and Refugee Law

It is noteworthy that Humanitarian Law, Human Rights Law and Refugee Law complement each other, however they are totally distinct from each other. The former two aim to protect right to life and dignity of people, however Humanitarian Law only becomes applicable in the times of war whereas Human Rights Law is applicable at both times, peace and war. States have to abide by both the laws. During the times of Emergency, a State can impose certain conditions under which human rights can be suspended. However, the State cannot suspend the fundamental rights guaranteed to a citizen under its Constitution. The provisions of Humanitarian Law, on the other hand, are to be adhered to and respected in all circumstances. The latter is complementary to Human Rights Law. In the event of an armed conflict, the Refugee law complements Humanitarian Law.

Humanitarian Law has been developed on the basis of Geneva Convention, the Additional Protocols and Hague Convention and the treaties covering the process to be adopted during a conflict. Human Rights law has been developed through International instruments such as:

  1. Universal Declaration of Human Rights 1948.
  2. Covenant on Economic, Social and Cultural Rights 1966.
  3. Covenant on Civil and Political Rights 1966.

Each State has devised its own law in order to implement the rules and regulations made in the above instruments. On the other hand, the Refugee Law has originated from the United Nations Convention relating to Refugees 1951 which supervises the protection of refugees on an International level.

Humanitarian Law which is commonly called as Jus in bello can also be distinguished from the law establishing the prohibition of the use of force between States and to the principle of jus ad bellum. Jus ad bellum is governed by the UN Charter and implemented through UN mechanisms. The obligation on States to respect and ensure respect for Humanitarian law is unaffected by arguments covered by jus ad bellum.[24]

Humanitarian law in the 20th Century

The Geneva Convention and the Additional Protocols led to the formation of Humanitarian Law consisting of rules and regulations to be followed during an armed conflict. However, enforcement till the late 20th century was controversial.  The beginning of 1990s and also the Gulf war saw considerable uncertainty regarding the position of Additional Protocol I and the application of Humanitarian Law because the principle of Jus in bello was only concerned with military necessity. Additionally, during the internal conflicts in Yugoslavia and Rwanda, the prime focus of the- then formed UN Security Council was authorizing peace operations which were aimed at aiding civilians and setting up the a Criminal Court at the International Level for the trial of War crimes.

The applicability of the Additional Protocol I remained controversial until the North Atlantic Treaty Organisation formerly intervened to apply the same in Kosovo in 1999, wherein it was accepted and held by Amnesty International that Additional Protocol I is binding on all States.[25] The acceptance of Additional Protocol I in 1999 led to shift to humanitarian considerations in terms of justification of civilian casualties. Towards the end of 1990s, Humanitarian law was enforced due to concerns relating to the victims of war and the hostilities committed on them. Hence, focus moved from military considerations towards victims who had suffered on account of the war. In addition to this, Jus in Bello was understood as International Humanitarian law which led to the balance being tilted towards humanitarian considerations than military necessity.[26]

Recent challenges for Humanitarian Law

In today’s world, civilians are the primary victims of armed conflict. The nature of conflicts of the 21st century has challenged the application and respect for the Humanitarian Law with regards to the classification and the use of new technologies. Understanding and responding to these challenges is the need of the hour to ensure that Humanitarian Law performs its functions in such situations. The complexity of armed conflicts has increased the discussion regarding the points of distinction the two types of armed conflicts since there is a very thin line of difference between the two. The impact of an internal conflict, in today’s times, within a State has affected the world community at large.

A bigger complexity in the form of overlap between the two legal regimes of Humanitarian Law and Human Rights law is affecting the conduct of military operations, detention-related issues and use of force in conflicts as well as extraterritorial targeting of persons.  Presently, the utmost concern is the protective scope of Humanitarian Law during a conflict by providing relief actions, subject to the agreement of the State and also in adverse situations. However, the main obstacles are humanitarian access and political and security-related concerns which become a hindrance in providing assistance to the civilians. The extraterritorial military operations have given rise to new forms of military presence in the territory of a State. This has refocused attention on:

  1. Rights and duties of the Occupying State.
  2. Regulation of the use of Force in Occupied State.
  3. Applicability of Law of Occupation to UN forces.

Multinational forces have now evolved and hence have been assigned the duty of:

  1. Conflict prevention
  2. Peace keeping
  3. Peace enforcement
  4. Peace building.

The Multinational organisations would use force to achieve the objectives mentioned above. Questions arise as to application of Humanitarian Law to justify their objectives.

New technologies in the form of remote-controlled drones have entered the battlefield. Cyberspace has opened a new domain in the world of conflicts. It is anticipated that automated weapons such as robots shall be used by States in the future. In such situations, application of Humanitarian Law poses legal and practical challenges for ensuring that such newly founded weapons comply with existing norms. The intermingling of the armed groups with the civilians, thereby violating the Humanitarian Law, has been used as a justification by some armies to ignore all the precautions as enforced by Humanitarian Law. Consequently, the effect of using explosive weapons in densely populated areas on civilian population continues to violate the norms of the Law. In addition, hostilities against government within a State have exposed the civilians to the consequences of the same. Inadequate regulation and misuse of conventional weapons posed an on-going challenge to the protection of civilians. According to the Geneva Convention, States are under an obligation to prohibit transfer of arms and ammunition to the possession of persons likely to violate the provisions of Humanitarian Law.

Challenges posed to Humanitarian Law also take the form of Terrorism as being an act of war committed against the State. It should be noted that armed conflicts and acts of terror are governed by different bodies of law, however they have become synonymous due to the impact, it causes on public domain. The confusion caused by the above leads a complete disregard for the Humanitarian Norms by a non-State armed group. It is pertinent to note that merely designating a non-State armed group as ‘terrorist group’ has consequently impeded humanitarian action.

Humanitarian Law has been continuously challenged by the changes and evolutions in armed conflict. It has become a constant priority for International Red Cross Committee to evolve the norms of Humanitarian Law so that they adequately address the ground reality of contemporary wars and also to aid the victims of armed conflict.[27]

 

[1] Retrieved from International Committee of Red Cross – International Humanitarian Law – Answers to your questions -http://www.redcross.org/images/MEDIA_CustomProductCatalog/m22303661_IHL-FAQ.pdf

[2] Retrieved from ICRC Advisory Service – What is International Humanitarian law -https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf

[3] International Justice Resource Center – International Humanitarian Law – http://www.ijrcenter.org/international-humanitarian-law/

[4] International Legal Frameworks for Humanitarian Action – Huma Haider – http://www.gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-humanitarian-law/

[5]Information Platform – humanrights.ch – Updated 19.8.2011 -http://www.humanrights.ch/en/standards/international-humanitarian-law/history/

[6] Charter of United Nations – Article 2, Chapter I.

[7] Charter of United Nations – Article 51, Chapter VII.

[8]Just Ad Bellum/ Jus In Bello by Karma Nabulsi -http://users.ox.ac.uk/~polf0002/director/publications/jusadbellum.pdf

[9] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, Common Article 2

[10] Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict by James G.Stewart, June 2003, Vol 85, N.850 p 315

[11] Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Common Article 3

[12] Defining Armed Conflict in International Humanitarian Law by  Gertrude C. Chelimo 2011 VOL 3 NO 04 – http://www.studentpulse.com/articles/508/defining-armed-conflict-in-international-humanitarian-law

[13] Typology of armed conflicts in international humanitarian law: legal concepts and actual situations by Sylvain Vite, Vol 91, No 873, p77

[14] 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.

15Protocol 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.

[16] In what situations does humanitarian law apply? For whom is it intended and who does it protect? – Updated on 1-1-2004. https://www.icrc.org/eng/resources/documents/misc/5kzk2z.htm

[17] Article 23, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

[18] Article 55, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

[19]Article 59, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 and 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

[20] Article 18, 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

[21]Article 73, 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.

[22] International Committee of Red Cross – International Humanitarian Law – Answers to your questions – http://www.redcross.org/images/MEDIA_CustomProductCatalog/m22303661_IHL-FAQ.pdf

[23] ICRC– Implementing International Humanitarian Law – From Law to Action

https://www.icrc.org/en/download/file/5450/implementing_ihl.pdf

[24] IHL and other Legal Regimes – https://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/overview-other-legal-regimes.htm

[25] Amnesty International, NATO/Federal Republic of Yugoslavia: ‘Collateral Damage’ or Unlawful Killings?:Violations of the Laws of War by NATO During Operation Allied Force (June 2000), available at www.amnesty.org/en/library/asset/EUR70/018/2000/en/e7037dbb-df56-11dd-89a6-e712e728ac9e/eur700182000en.pdf

[26] A Short History of International Humanitarian Law by Amanda Alexander, Vol 26, No 1 http://ejil.oxfordjournals.org/content/26/1/109.full.pdf

[27] Contemporary Challenges for IHL – 05-02-2013 Overview https://www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/overview-contemporary-challenges-for-ihl.htm

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