International Humanitarian Law Concepts and Challenges

IHL is often termed as the law of war, the laws and customs of war or the law of armed conflict, is a legal framework valid to situations of armed conflict, (armed conflicts may be international or non-international in character). It is comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. International humanitarian law (IHL) is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States/treaties or conventions in customary rules, which consist of State practice considered by them as legally binding, and in general principles.

IHL generally can be defined as the laws and customs aiming to limit the effects of armed conflict for humanitarian reasons. It limits those effects principally by protecting persons who are not or who are no longer participating directly in hostilities and by restricting the means and methods of warfare. Its application is never dependent on any sort of the declaration or formal recognition of war. It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.

There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. IHL is governed by an important, but distinct, part of international law set out in the United Nations Charter. This law when in effect during an armed conflict in Latin is termed as jus in bello.

Today, a major chunk of IHL is largely codified in The Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949, and their Additional Protocols of 1977 and 2005; nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by further agreements. These agreements include:

The1925 Geneva Protocol on Gas Warfare,

The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;

The 1972 Biological Weapons Convention;

The 1980 Conventional Weapons Convention and its five protocols;

The 1993 Chemical Weapons Convention;

The 1997 Ottawa Convention on anti-personnel mines;

The 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Many provisions of international humanitarian law are now accepted as customary law: that is, as general rules by which all States are bound.

History & Evolution:

History has seen states been conquered in wars and the personnel (combatants and non- combatants) been kept in enduring custody for lawful and unlawful reasons. They were apprehended so to keep them away from combatants still in the war field. After the hostilities were ended they used to release and repatriate them in a proper way. Sometimes captors used to hold the personnel so to punish them or prosecute them for the war crimes or were kept to work as their labors, or sometime used to recruit them as their own combatants so to increase their army strength. Depending on the victor’s culture, combatants of the losing side or to say the “prisoners of war” could presume either to be enslaved, executed, or eradicated so they do not grow as a future threat. There was an insignificant distinction made between civilians and the combatants, however children and women were expected to be spared. Some battles were also fought not to rage a war for land but to capture women, the practice was known as Raptio.

In Middle Ages history has noticed a number of violent wars fought on the name of God and religion. In Christian Europe, the extinction of the heretics or “non-believers” was considered desirable. Examples include the people of conquered cities were frequently massacred during the Crusades against the Muslims in the 11th century and the 12th century. In France many prisoners of war were killed during the Battle of Agincourt in 1415. In the samurai-dominated Japan there was no custom of ransoming prisoners of war, who were for the most part summarily executed. In the Arabian world the captor’s used not to execute the prisoners but were made to beg for their survival until the time Islam was taken as a way of life by the Arabians .It was Muhammad (S.A.W) who brought the massage of peace and humanity to the Arabians and changed their existing custom and made it the responsibility of the Islamic administration to provide food and shelter, to the captives regardless of their race or religion. If the prisoners were under the command of an individual then it was made his responsibility to

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provide refuge to him. Muhammad (S.A.W) instituted a decree that prisoners of war must be guarded and not to be treated inhumanly and made a norm of releasing or ransoming the prisoners after the battle is over. Releasing and freeing of prisoners in particular was highly recommended as it was considered as an effort of charitable act. History reads Mecca as the first city to have this generous code applied

Through the 19th century efforts were made to improvise the condition and processing of prisoners of war. The Revolutionary war and the Napoleonic wars from 1793-1815 which was then followed by the Anglo-American War of 1812 was the extensive period of the conflict which led to the coming out of a cartel system for the exchange of prisoners, even if the belligerent state were still at war. Generally a cartel was arranged by the respective armed service for the exchange of same or like ranked personnel. The motive was to decrease the number of prisoners held, simultaneously alleviating the shortages of skilled personnel in the home country. The exchange of prisoners of war was an established practice by the American Revolution. Shortly after the battles at Lexington and Concord, Massachusetts authorities arranged for the exchange of captured British soldiers for Massachusetts militiamen, a precedent that other states soon followed after them.

As French and Austrian armies fought the battle of Solferino in northern Italy in June, 1859, the idea of international action to limit the suffering of the sick and wounded in wars was born in the mind of Henri Dunant, a young Swiss citizen.

Dunant found himself, more or less by accident, among thousands of French and Austrian wounded after the battle, and with a few other volunteers did what he could to ease their suffering. Appalled by what he had seen, he then wrote a book Un souvenir de Solferino, published in 1862, in which he suggested that national societies should be created to care for the sick and wounded irrespective of their race, nationality or religion. He also proposed that States should make a treaty recognizing the work of these organizations and guaranteeing better treatment for the wounded.

With four friends, Henri Dunant then set up the International Committee for Aid to the Wounded (soon to be renamed the International Committee of the Red Cross). Dunant’s ideas met a wide response. In several countries national societies were founded and at a diplomatic conference in Geneva in 1864 the delegates of 16 European nations adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. This document, the First Geneva Convention, enshrined the principles of

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universality and tolerance in matters of race, nationality and religion. The emblem, a red cross on a white field, was adopted as the distinguishing mark of military medical personnel. In Islamic countries, the emblem is a red crescent on a white field. Medical staff and installations were from this time on to be considered as neutral.

The Convention formally laid the foundations of International humanitarian law.

Evolution:

The need to give broader scope to the Geneva Convention was soon evident:

In 1868, a new draft convention was drawn up with the idea of extending the principles adopted four years earlier to maritime conflicts.

In another move, the St. Petersburg Declaration of 1868 called on States not to use arms which cause unnecessary suffering. The Declaration prohibited the use of explosive bullets.

The Peace Conferences at The Hague in 1899 and 1907 adopted conventions defining the laws and customs of warfare and declarations forbidding certain practices, including the bombardment of undefended towns, the use of poisonous gases and soft-nosed bullets.

In 1906, the First Geneva Convention was revised to give greater protection to victims of war on land, and in the following year all its provisions were formally extended to situations of war at sea.

A conference in Geneva in 1929 adopted a Convention with better provisions for the treatment of the sick and wounded, and a second Convention on the treatment of prisoners of war.

The Spanish Civil War (1936-1939) and the Second World War (1939-1945) provided compelling evidence of the need to bring international humanitarian law once again into line with the changing character of warfare.

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The decision was taken to make a fresh start and New Geneva Conventions were drawn up covering, respectively,

the sick and wounded on land (First Convention),

wounded, sick and shipwrecked members of the armed forces at sea (Second Convention),

Prisoners of war (Third Convention), and

Civilian victims (Fourth Convention).

These Conventions were adopted at an international diplomatic conference held in Geneva from April to August, 1949.

The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law, which met in Geneva from 1974 to 1977, adopted two Additional Protocols to the 1949 Conventions.

Protocol I: deals with the protection of victims of international conflicts.

Protocol II: concerns the victims of internal armed conflicts, including those between the armed forces of a government and dissidents or other organized groups which control part of its territory, but does not deal with internal disturbances and tensions in the form of riots, or other isolated and sporadic acts of violence.

On 31 December 1990, 164 States were parties to the Geneva Conventions, while 99 States had ratified or acceded to Protocol I and 89 States had ratified or acceded to Protocol II.

There are three main currents that have contributed to the making of International humanitarian law. They are the “law of Geneva”, represented by the international Conventions and Protocols established under the aegis of the International Committee of the Red Cross (ICRC) with the protection of the victims of conflict as their central concern; the “law of The Hague”, based on the results of the Peace Conferences in the capital of the Netherlands in 1899 and 1907, which dealt principally with the permissible means and methods of war; and the efforts of the United Nations to ensure that human rights are respected in armed conflicts and to limit the use of certain weapons.

Increasingly, these three currents have merged to form one stream of action.

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Challenges of implementing IHL in contemporary conflicts:

Below I have discussed some of the challenges of implementing IHL in contemporary conflicts:

Organizing the political will to prevent violations of international humanitarian law

The fragmentation of non-State armed groups.

The rapid development of private military and security companies.

The necessity of limiting or outlawing the use of certain weapons.

The challenge to the humanitarian law to fight against present terrorism.

Organizing the political will to prevent violations of international humanitarian law:

The most important current challenge is the lack of political will of belligerent parties with to respect IHL. The serious violations of humanitarian law that occurred during the wars in Yugoslavia, Rwanda, and elsewhere mobilized public opinion to find new ways for the international community to put an end to such violations. Non-governmental advocacy groups lobbied for more decisive action at the international level, while the ICRC, along with them, supported the creation of an International Criminal Court that would put an end to impunity and make humanitarian law more effective. The ICRC also reminded governments that through the Geneva Conventions of 1949 and their Additional

Protocol I they had contracted a collective responsibility “to ensure respect for these Conventions under all circumstances” (Article 1 common to the four Geneva Conventions) and “in situations of serious violation, to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter” (Article 89, Additional Protocol I). Over the past 10 years considerable progress has been achieved in this respect, but much more needs to be done. Although more UN peace-keeping missions are deployed in trouble spots, and although some of them are robust enough to have a direct protective impact on the civilian population, the ambitions of many missions are not adequately supported by the necessary resources, material and

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human. Politically, the development of the “Responsibility to Protect” concept and its adoption at a UN summit of world leaders in 2005 was a significant step forward. The Secretary-General now keeps the UN Security Council updated of the latest developments regarding the situation of the civilian population in armed conflicts throughout the world. However, being informed and having a principled concept in place have not yet resulted in the political action necessary to effectively stop all serious violations of humanitarian law.

The fragmentation of non-State armed groups.

When the ICRC started its operations in Darfur almost a half of a decade ago, the delegates of ICRC had to deal with two rebel groups fighting against the government of Sudan. Today there are some 20 distinct factions of militarized non-State actors with whom they have to establish contact in order to operate with a minimum of security guarantees and on whom they have to impress the fact of their responsibility for the civilian population. The same phenomenon of proliferation and fragmentation of armed non-State groups is apparent elsewhere. Therefore I see a need to devise innovative strategies to reach out to all of them in order to convince them that it is in their interests to uphold the basic tenets of humanitarian law.

The rapid development of private military and security companies.

The growing significance of private military and security companies, as demonstrated by the extraordinary number of such companies operating in Iraq, is, equally, a challenge to the application of international humanitarian law. While Iraq is probably an exceptional situation and may not recur in the same manner elsewhere, it is clear that States, but also multinational coalitions, peace-keeping troops, or organizations like NATO will resort to private actors for support for their operations. Whilst the personnel of private military and security companies are bound by international humanitarian law, like any other actor in an armed conflict, few States have regulated their activities, by setting out, for instance,

clear standards of conduct in contracts. There also exists a gap in criminal accountability. All this has created a general concern that some companies may employ personnel who have previously committed violations of humanitarian law or are untrained for their task. Within the framework of an initiative sponsored by the Swiss government, the ICRC is

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now working with government experts from 18 countries to develop good practices for contracting States, i.e. those that contract such companies, for territorial States, i.e. those on whose territories these companies will operate, as well as for home States where such companies are registered. Through this initiative ICRC want to reaffirm that the law applies to these actors and to increase the practical relevance of humanitarian law in this extremely critical sector.

The necessity of limiting or outlawing the use of certain weapons.

Shocked by the devastating impact that the use of poisonous gas had during World War I, the ICRC actively lobbied for the creation of an international treaty that would outlaw such weapons. Indeed, looking back from a distance of almost a century, its felt that the 1925 Protocol on chemical weapons has been a key element in preventing the spread of such weapons and their use in more recent armed conflict. Yes, there were exceptions when, in the border town of Halabja, Iraq thousands of people perished in a chemical attack. Still, ICRC is convinced that the universal consensus on the need to outlaw the use of such weapons, as confirmed in the 1993 Chemical Weapons Convention, was instrumental in potentially saving millions of lives.

The ICRC is no less concerned today about the potential use of all weapons of mass destruction: nuclear, radiological, biological or chemical. They are equally concerned about the humanitarian impact of certain conventional weapons.

As a result of its familiarity with the devastating and indiscriminate effects of land-mines long after the end of hostilities, the ICRC has been a vigorous advocate of the Ottawa treaty on anti-personnel mines. Now, they urge States to conclude a new treaty that will ban inaccurate and unreliable cluster munitions. Each of these weapons can contain up to 644 individual sub munitions or “bomb lets” that are generally designed to explode on impact. In reality, a high percentage fail to explode as intended. Credible estimates of the failure rate of cluster munitions put it at anywhere from ten to forty percent. Some countries – Laos, for instance are still contaminated by an enormous amount of unexploded cluster sub-munitions several decades after the end of war.

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The challenge to the humanitarian law to fight against present terrorism.

The increase in the attention being paid to humanitarian law in recent times is the result mainly of the struggle against terrorism. The horrifying attacks of 11 September 2001 and the response to them have raised questions about the efficacy of international

humanitarian law in dealing with contemporary forms of violence, and in particular terrorism. It has been asked whether humanitarian law was actually capable of addressing “terrorism.”

To answer this question we must first clarify how different bodies of law relate to the term “terrorism”: although a comprehensive definition at the international level does not exist, terrorist acts are well-defined under domestic law and under existing international and regional conventions on terrorism and may, provided the requisite criteria are met, qualify as war crimes or as crimes against humanity. It is a basic principle of international humanitarian law that persons engaged in armed conflict must at all times distinguish between civilians and combatants and between civilian objects and military objectives. International humanitarian law also includes specific rules such as the prohibition against deliberate or direct attacks against civilians and civilian objects, against indiscriminate attacks and the use of “human shields”. The taking of hostages is also prohibited. Let me also remind you that international humanitarian law specifically prohibits “measures of terrorism” and “acts of terrorism” against persons in the power of a party to the conflict.

This important point should be understood: unlike some other areas of international law, “terrorism” is well regulated under international humanitarian law, which explicitly prohibits acts committed against civilians and civilian objects in armed conflict that would commonly be considered “terrorist” if committed in peacetime.

In this context I would like to mention the growing and, to us worrying tendency of States to label as “terrorists” all organized armed groups that oppose State authorities in non-international armed conflicts. This trend to criminalize the enemy himself and not just the specific acts he may carry out goes against the need to differentiate between lawful acts of war in non-international armed conflicts and acts of terrorism. While acts of violence against military objectives in internal armed conflicts remain subject to domestic criminal law, the tendency to also designate them as “terrorist” under international law, risks undermining whatever little incentive armed groups have to respect international humanitarian law.

The fact that the struggle against terrorism does sometimes take the form of armed conflict does not imply that the law regards all acts of terrorism carried out in various parts of the world, the bombings in London, Glasgow, Madrid, Bali, Istanbul, or Casablanca as belonging to the same armed conflict. It seems dubious to attribute these several acts to one identifiable party to armed conflict (as understood under international humanitarian law) or to claim that the level of violence reached in each instance is such as to qualify it to be regarded as armed conflict.

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Conclusion

In conclusion, I hold that each situation of organized armed violence must be examined in the specific context in which it takes place in order to establish on the basis of facts whether it qualifies legally as war. The laws of war were evolved to tackle situations of armed conflict, both legally and practically. One should always remember that the provisions of humanitarian law, on what constitutes lawful taking of life and on detention in armed conflict, allow for more flexibility than the rules applicable in non-conflict situations governed by other bodies of law, such as human rights law. In other words, it is both unnecessary and dangerous to apply international humanitarian law to situations that do not amount to war.

Priyanka Guha Roy

M.A.(Previous) C.A.& P.B

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