Table of Contents
International Humanitarian Law
Introduction;
International
humanitarian law is a set of rules which seek, for humanitarian reasons, to
limit the effects of armed conflict. It protects persons who are not
or are no longer participating in the hostilities and restricts the means and methods
of warfare. International humanitarian law is also known as the law of war or
the law of armed conflict.
International
humanitarian law is part of international law, which is the body of rules
governing relations between States and it applies to armed conflicts and seeks
to protect people who are not or are no longer taking part in the hostilities,
and to restrict the methods and means of warfare employed.
In
addition to regulating states, international law also seeks to regulate the
conduct of hostilities. These principles cover, for example, the treatment of
prisoners of war, civilians in occupied territory, sick and wounded personnel,
prohibited methods of warfare and human rights in situations of conflict. This
subject was originally termed the “laws of war” and then the “laws of armed
conflict”. More recently, it has been called “international humanitarian law”.
Definition of International Humanitarian Law;
·
“International
Humanitarian law, is the body of international rules which, in wartime, protect
persons and objects affected or likely to be affected by the hostilities, and
limit methods and means of warfare”.
·
It can also be
defined as, “the principles and rules which set limitations to the use of
violence during armed conflicts, in order to:
a)
Spare those
persons ("civilians") not directly involved in hostilities
b)
Limit the
effects of violence (even to "combatants") to the amount necessary
for the purpose of war”.
·
Or generally it
can be defined as;
“International Humanitarian Law
applicable in armed conflicts” means international rules, established by treaty
or custom, which are specifically intended to solve humanitarian problems that
arise directly from international or non-international armed conflicts. For
humanitarian reasons, these rules protect persons and property that are, or may
be, affected by conflict by limiting conflicting parties’ rights to choose
their methods and means of warfare. The expression “international humanitarian
law applicable in armed conflict” is often abbreviated to International
Humanitarian Law or Humanitarian Law. Though the military tends to prefer the
expressions “Laws of Armed Conflicts” (LOAC) or “Laws of War”, these two
expressions should be understood as synonymous with “IHL”.
History, Development and Sources of International Humanitarian Law;
History;
One
can say that the laws of war are almost as old as war itself. Although scholars
generally agree that the birth of modern IHL was in 1864, with the adoption of
the First Geneva Convention, it is also clear that the rules contained in that
Convention were not entirely new. In reality, a large amount of the First
Geneva Convention was derived from existing international customary law which
can be found in many different civilizations, throughout the world and
throughout history.
For
example “The Arts of the War”, written in 500 BC, the Chinese writer Sun Tzu,
expressed the idea that wars must be limited to military necessity and the Code
of Manu written in 200 BC, one finds rules relating to behaviour in combat.
Between
the 16th and 18th centuries, in the Renaissance and Age of Reason, an
interesting and humanitarian practice developed in Europe. Frequently, warriors
met before the hostilities and decided on guidelines to be respected during the
battle. And the first universal treaty on Humanitarian Law is the Geneva
Convention of 1864.
Henry Dunant and origin of ICRC;
The
conception of IHL can be traced to the Battle of Solferino, a terrible conflict
between French and Austrian forces that took place in northern Italy in 1859.
One witness of that carnage, a businessman from Geneva named Henry Dunant, was
appalled not so much by the violence of that battle, but rather by the
desperate and miserable situation of the wounded left on the battlefields. With
the help of the local inhabitants, Dunant immediately decided to collect and
care for the wounded.
Back
in Geneva, Dunant published a short book in 1862, A Memory of Solferino, in
which he vividly depicted the horrors of the battle. In his book, Dunant not
only described the battle, but tried to suggest and publicize possible measures
to improve the fate of war victims. In his book he launched two proposals;
a.
That an
international treaty be adopted to recognize the immunity and neutrality of the
medical personnel bringing aid to the wounded soldiers.
b.
That in all
countries relief societies be formed to assist the wounded soldiers in wartime.
His
book enjoyed enormous success throughout Europe. At that time, a private
welfare association existed in Geneva: The Society for the Public Good. Its
President, Gustave Moynier, was impressed by Dunant’s book and proposed to the
members of the Society that they try to carry out Dunant’s proposals. This
suggestion was accepted and five members of the Society, Mssrs. Dunant,
Moynier, Dufour, Appia and Maunoir, created a special committee in 1863, the
“International Standing Committee for Aid to Wounded Soldiers.” This committee
would, 15 years later, become the International Committee of the Red Cross.
Sources of International Humanitarian Law;
International
humanitarian law is primarily derived from a number of international
conventions, some of these represent in whole or in part rules of customary
international law, and are one of the most highly codified parts of
international law.
The
main treaties of International Humanitarian Law are;
· Four Geneva Conventions, 1949;
1)
First
convention protects military wounded and sick and medical personnel.
2)
Second
convention protects military wounded and sick and medical personnel of armed
forces at sea, as well as the shipwrecked.
3)
Third
convention protects prisoners of war.
4)
Fourth
convention protects civilians in enemy and occupied territories.
· Two Protocols, 1997;
1)
First
additional protocol deals with international armed conflicts.
2)
Second
additional protocol deals with non-international armed conflicts.
Protocol III was adopted in 2005 and
introduced a third emblem to the two previously recognized ones (the Red Cross
and the Red Crescent) in the form of a red diamond.
· Other Treaties and Agreements;
1)
The 1954
Convention for the Protection of Cultural Property in the Event of Armed
Conflict, plus its two protocols;
2)
The 1972
Biological Weapons Convention;
3)
The 1980
Conventional Weapons Convention and its five protocols;
4)
The 1993
Chemical Weapons Convention;
5)
the 1997 Ottawa
Convention on anti-personnel mines;
The
foundation of the Geneva Conventions systems the principle that persons not
actively engaged in warfare should be treated humanely.
The scope of protection under International Humanitarian Law;
The
rules of international humanitarian law seek to extend protection to a wide
range of persons, but the basic distinction drawn has been between combatants
and those who are not involved in actual hostilities.
· The wounded and sick;
The
First Geneva Convention concerns the Wounded and Sick on Land and emphasises
that members of the armed forces and organised militias, including those accompanying
them where duly authorised, ‘shall be respected and protected in all
circumstances’. They are to be treated humanely by the party to the conflict
into whose power they have fallen on a non-discriminatory basis and any
attempts upon their lives or violence to their person is strictly prohibited.
Torture or biological experimentation is forbidden, nor are such persons to be
willfully left without medical assistance and care.
The
Second Geneva Convention concerns the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea and is very similar to the First Convention.
· Prisoners of war;
The
Third Geneva Convention of 1949 is concerned with prisoners of war, and
consists of a comprehensive code centered upon the requirement of humane
treatment in all circumstances.
· Protection of civilians and occupation;
The
Fourth Geneva Convention is concerned with the protection of civilians in time
of war. This Geneva Convention, is limited under article 4 to those persons, “who,
at a given moment and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a party to the conflict or occupying
power of which they are not nationals”.
The
Fourth Convention provides a highly developed set of rules for the protection
of such civilians, including the right to respect for person, honour,
convictions and religious practices and the prohibition of torture and other
cruel, inhuman or degrading treatment, hostage-taking and reprisals. The
wounded and sick are the object of particular protection and respect and there
are various judicial guarantees as to due process.
The conduct and control of hostilities;
International
law, in addition to seeking to protect victims of armed conflicts, also tries
to constrain the conduct of military operations in a humanitarian fashion. And
as far as the civilian population is concerned during hostilities, the basic
rule is formulated in article 48 of Protocol I and that is, “that the parties
to the conflict must at all times distinguish between such population and
combatants and between civilian and military objectives and must direct their
operations only against military objectives”.
Article
51 provides that the civilian population as such, as well as individual civilians,
“shall not be the object of attack”. In Article 57
the conduct of military operations, ‘constant care shall be taken to spare the
civilian population, civilians and civilian objects’.
The
International Court in its Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons (ICJ Reports, 1996,) summarised in the
following authoritative way:
“The
cardinal principles contained in the texts constituting the fabric of humanitarian
law are the following.
·
The first is
aimed at the protection of the civilian population and civilian objects and
establishes the distinction between combatants and non-combatants; states must
never make civilians the object of attack and must consequently never use
weapons that are incapable of distinguishing between civilian and military
targets.
·
According to
the second principle, it is prohibited to cause unnecessary suffering to
combatants; it is accordingly prohibited to use weapons causing them such harm
or uselessly aggravating their suffering. In application of that second
principle, states do not have unlimited freedom of choice of means in the
weapons they use”.
The
Court emphasised that the fundamental rules flowing from these principles bound
all states, whether or not they had ratified The Hague and Geneva Conventions,
since they constituted ‘intransgressible principles of international customary
law’.
International armed conflicts and internal armed conflicts;
The
rules of international humanitarian law apply to armed conflicts. Accordingly,
no formal declaration of war is required in order for the Conventions to apply.
The concept of ‘armed conflict’ is not defined in the Conventions or Protocols,
although it has been noted that ‘an armed conflict exists whenever there is a
resort to armed force between states or protracted armed violence between
governmental authorities and organized armed groups within a state’, but as an
intra-state matters traditionally fell within the domestic jurisdiction of
states and were thus in principle impervious to international legal regulations.
· Tadic case;
The
notion of an armed conflict itself was raised before the Appeals Chamber of the
International Criminal Tribunal for the Former Yugoslavia in its decision on
jurisdictional issues in the Tadi´c case. It was claimed that no armed conflict as such
existed in the Former Yugoslavia with respect to the circumstances of the
instant case since the concept of armed conflict covered only the precise time
and place of actual hostilities and the events alleged before the Tribunal did
not take place during hostilities.
The
Appeals Chamber of the Tribunal correctly refused to accept a narrow
geographical and temporal definition of armed conflicts, whether international
or internal. It was stated that:
“International
humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until a general conclusion of peace
is reached; or, in the case of internal conflicts, a peaceful settlement is
achieved. Until that moment, international humanitarian law continues to apply
in the whole territory of the warring states or, in the case of internal
conflicts, the whole territory under the control of a party, whether or not
actual combat takes place”.
· Common article 3;
Although
the 1949 Geneva Conventions were concerned with international armed conflicts,
common article 3 did provide in cases of non-international armed conflicts
occurring in the territory of one of the parties a series of minimum guarantees
for protecting those not taking an active part in hostilities, including the
sick and wounded.
Common article
3 lists the following as the minimum safeguards:
1. Persons taking
no active part in hostilities to be treated humanely without any adverse distinction
based on race, colour, religion or faith, sex, birth or wealth.
To
this end the following are prohibited:
a) Violence to life and person, in particular murder, cruel treatment
and torture;
b) Hostage-taking;
c) Outrages upon human dignity, in particular humiliating and
degrading treatment;
d) The passing of
sentences and the carrying out of executions in the absence of due process.
2. The wounded and the sick are to be cared for.
Common
article 3 was developed by Protocol II, 1977, which applies by virtue of
article 1 to all non-international armed conflicts which take place in the
territory of a state party between its armed forces and dissident armed forces.
Implementation and enforcement of International Humanitarian Law;
Under
Article 1 parties to the 1949 Geneva Conventions and to Protocol I, 1977,
undertake to respect and to ensure respect for the instrument in question. And
a variety of enforcement methods exist;
· Protecting Power;
One
of the means of implementation is the concept of the Protecting Power,
appointed to look after the interests of nationals of one party to a conflict
under the control of the other, whether as prisoners of war or occupied
civilians. Sweden and Switzerland performed this role during the Second World
War. But the drawback of this system is its dependence upon the consent of the
parties involved.
· International Fact-Finding Commissions;
Protocol
I also provides for an International Fact-Finding Commission for competence to
inquire into grave breaches of the Geneva Conventions and that
Protocol or other serious violations.
i. Grave breaches;
The Geneva Conventions, define the
grave breaches of the conventions, and expressly stipulates that the states
shall bring such persons guilty of grave breaches before Courts of Justice,
regardless of their nationality. Such crimes are may include; genocide, war
crimes, crime against humanity, aggression (going to be added, 2018 resolution
passed).
Further the international community established international
criminal tribunals for trial of such cases, e.g. (ICTR) Tribunal established in
wake of genocide in Rawanda.
· International Committee for Red Cross, (ICRC);
A
great deal of valuable work in the sphere of humanitarian law has been
accomplished by the International Red Cross. This indispensable organisation
consists of the International Committee of the Red Cross (ICRC), over 100
national Red Cross (or Red Crescent) societies with a League coordinating their
activities, and conferences of all these elements every four years. The ICRC is
the most active body and has a wide-range of functions to perform, including
working for the application of the Geneva Conventions, and to ensure the
implementation of humanitarian law.
· Rules by ICRC;
The ICRC
formulated the following principles as a guide to the relevant legal rules:
1)
Persons hors
de combat and those who do not take a direct part in hostilities are
entitled to respect for their lives and physical and moral integrity. They
shall in all circumstances be protected and treated humanely without any
adverse distinctions.
2)
It is forbidden
to kill or injure an enemy who surrenders or who is hors de combat.
3)
The wounded and
sick shall be collected and cared for by the party to the conflict which has
them in its power. Protection also covers medical personnel, establishments,
transports and mat´eriel. The emblem of the red cross (red crescent, red
lion and sun) is the sign of such protection and must be respected.
4)
Captured
combatants and civilians under the authority of an adverse party are entitled
to respect for their lives, dignity, personal rights and convictions. They
shall be protected against all acts of violence and reprisals. They shall have
the right to correspond with their families and to receive relief.
5)
Everyone shall
be entitled to benefit from fundamental judicial guarantees. No one shall be
held responsible for an act he has not committed. No one shall be subjected to
physical or mental torture, corporal punishment or cruel or degrading
treatment.
6)
Parties to a
conflict and members of their armed forces do not have an unlimited choice of
methods and means of warfare. It is prohibited to employ weapons or methods of
warfare of a nature to cause unnecessary losses or excessive suffering.
7)
Parties to a
conflict shall at all times distinguish between the civilian population and
combatants in order to spare civilian population and property. Neither the
civilian populations as such nor civilian persons shall be the object for
attack. Attacks shall be directed solely against military objectives.
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