“International humanitarian Law is a branch of international law which provides protection to Human beings from the consequences of armed conflict. “Discuss
Introduction:
International humanitarian law (IHL) (also commonly referred to as the law of war or the law of armed conflict) is the branch of international law applicable to armed conflicts. IHL restricts the methods and scope of warfare through a set of universal laws (treaties and customs) that limit the effects of armed conflict and that protect civilians and persons who are no longer participating in hostilities. States have always been limited in the ways in which they conduct armed conflicts, from the adherence to national laws and bilateral treaties, to the observance of time-honored customary rules. (Charles worth, 2002) However, throughout history these limitations on warfare varied greatly among conflicts and were ultimately dependant on time, place, and the countries involved. Not until the 19th century was there a successfully effort to create a set of internationally recognized laws governing the conduct and treatment of persons in warfare.[1] (Parekh, 1997)
In conflicts across the globe, governments and armed groups routinely attack civilians and commit war crimes and terrible abuses of human rights. And yet, even in war there are rules that all sides are legally bound to obey. International humanitarian law (IHL), also known as the laws of armed conflict or the laws of war, has developed in order to mitigate the effects of such conflict. It limits the means and methods of conducting military operations. Its rules oblige combatants to spare civilians and those who no longer participate in hostilities, such as soldiers who have been wounded or have surrendered. IHL applies only during armed conflict; human rights law applies in war and peace.[2] (CRESCENT, 2011)
But powerful nations have shown a sinister willingness to manipulate international institutions or apply double standards, often arming forces known to commit mass abuses while disclaiming responsibility for the carnage. Although international organizations such as the United Nations have advanced in their capacity to monitor and report on human rights in conflict situations, few perpetrators of mass abuses against civilians are held accountable. Continuing violence feeds on unresolved grievances arising from years of destructive conflict and this failure to hold perpetrators of grave abuses to account. Amnesty International does not take sides in conflicts and has no opinion on borders. Our work in situations of armed conflict concentrates on documenting and campaigning against human rights abuses and violations of IHL, no matter who commits them.
What is International Humanitarian law?
International humanitarian law forms a major part of public international law (see opposite) and comprises the rules which, in times of armed conflict, seek 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. (Mona Fixdal, 1998) More precisely, what the ICRC means by international humanitarian law applicable in armed conflicts is international treaty or customary rules which are specially intended to resolve matters of humanitarian concern arising directly from armed conflicts, whether of an international or non-international nature; for humanitarian reasons those rules restrict the right of the parties to a conflict to use the methods and means of warfare of their choice, and protect people and property affected or liable to be affected by the conflict. (L, 2002)
Terminology
The expressions international humanitarian law, law of armed conflicts and law of war may be regarded as equivalents. International organizations, universities and even States will tend to favor international humanitarian law (or humanitarian law), whereas the other two expressions are more commonly used by the armed forces. The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. (Mona Fixdal, 1998) Neither the civilian population as whole nor individual civilians may be attacked. Attacks may be made solely against military objectives. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavorable distinction whatever[3]. (Allan Rosas, 1987) It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting. Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering. They must enjoy basic judicial guarantees.
Fundamental principles of humanitarian law
International humanitarian law aims to limit the suffering caused by war by forcing parties engaged in a conflict to:
• Engage in limited methods and means of warfare;
• Differentiate between civilian population and combatants, and work to spare civilian population and property;
• Abstain from harming or killing an adversary who surrenders or who can no longer take part in the fighting;
• Abstain from physically or mentally torturing or performing cruel punishments on adversaries. (Weiss, 2001)
The Rights Are At Stake:
Humanitarian law is the branch of public international law that comprises the rules, which, in times of armed conflict, seek to (I) protect persons who are not or are no longer taking part in the hostilities, (ii) restrict the methods and means of warfare employed, and (iii) resolve matters of humanitarian concern resulting from war.
The term “humanitarian” is often used in everyday language in a very broad sense, and can be confused with the term “human rights.” Although both are concerned with the protection of the individual, the two bodies of law apply to different circumstances and possess slightly different objectives. The main distinction between the two bodies of law is that humanitarian law applies to situations of armed conflict, while human rights protect the individual in times of both war and peace. Humanitarian law aims to limit the suffering caused by war by regulating the way in which military operations are conducted. (Meron, 2000)
Types of Armed Conflict
Under Protocol I of 8 June 1977, wars of national liberation must also be treated as conflicts of an international character. A war of national liberation is a conflict in which a people are fighting against a colonial power, in the exercise of its right of self- determination. Whereas the concept of the right of self-determination is today well accepted by the international community, the conclusions to be drawn from that right for the purposes of humanitarian law and, in particular, its application to specific conflict situations are still somewhat controversial[4]. (Goodman, 2006)
The majority of today’s armed conflicts take place within the territory of a state: they are conflicts of a non-international character. A common feature of many such internal armed conflicts is the intervention of armed forces of another state, supporting the government or the insurgents.
The substantive rules of humanitarian law governing non-international armed conflicts are much simpler than their counterparts governing international conflicts. They are derived from one main source, namely article 3 common to the four Geneva Conventions of 1949, which obliges the parties to an internal conflict to respect some basic principles of humanitarian behavior already mentioned above. Article 3 is binding not only on governments but also on insurgents, without, however, conferring any special status upon them[5]. (Kent, 2004)
Additional Protocol II of 1977 supplements Article 3 common to the Geneva Conventions with a number of more specific provisions. This is a welcome contribution to the strengthening of humanitarian protection in situations of internal armed conflict. Protocol II has, however, a narrower scope of application than common Article 3. It applies only if the insurgent party controls part of the national territory.
What is the difference between humanitarian law and Human rights law?
International humanitarian law and international human rights law (hereafter referred to as human rights) are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle. Humanitarian law applies in situations of armed conflict whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike. However, some human rights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL because it was conceived for emergency situations, namely armed conflict. Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to everyone. Their principal goal is to protect individuals from arbitrary behavior by their own governments. Human rights law does not deal with the conduct of hostilities. The duty to implement IHL and human rights lies first and foremost with States. Humanitarian law obliges States to take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are bound by human rights law to accord national law with international obligations. IHL provides for several specific mechanisms that help its implementation. Notably, States are required to ensure respect also by other States. Provision is also made for an enquiry procedure, a Protecting Power mechanism, and the International Fact-Finding Commission. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules. Human rights implementing mechanisms are complex and, contrary to IHL, include regional systems. Supervisory bodies, such as the UN Commission on Human Rights, are either based on the UN Charter or provided for in specific treaties (for example the Human Rights Committee, which is rooted in the International Covenant on Civil and Political Rights of 1966).[6] (Mckn)The Human Rights Commission and its Sub commissions have developed a mechanism of “special reporters” and working groups, whose task is to monitor and report on human rights situations either by country or by topic. Six of the main human rights treaties also provide for the establishment of committees (e.g. the Human Rights Committee) of independent experts charged with monitoring their implementation. Certain regional treaties (European and American) also establish human rights courts. The Office of the UN High Commissioner for Human Rights (UNHCHR) plays a key part in the overall protection and promotion of human rights. Its role is to enhance the effectiveness of the UN human rights machinery and to build up national, regional and international capacity to promote and protect human rights and to disseminate human rights texts and information[7]. (Tanner, 2002)
International and Regional Instruments for Protection
When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others, a specific law may be required to give an international treaty, although ratified or acceded to, the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, amend existing laws or introduce new legislation in order for the treaty to be fully effective on the national territory.
Instructions to and training of the armed forces: the complex set of obligations arising out of the Conventions and the Protocols must be translated into a language which is clearly understandable to those who have to comply with the rules, in particular the members of armed forces, according to their ranks and their functions. Good manuals on humanitarian law play a decisive part in effectively spreading knowledge of that law among military personnel. Rules which are not understood by or remain unknown to those who have to respect them will not have much effect.
Domestic legislation on implementation: Many provisions of the Geneva Conventions and of their Additional Protocols imperatively require each State Party to enact laws and issue other regulations to guarantee full implementation of its international obligations. This holds particularly true for the obligation to make grave breaches of international humanitarian law (commonly called “war crimes”) crimes under domestic law.
Prosecution of persons who have committed grave breaches of international humanitarian law: Such persons must be prosecuted by any State party under whose authority they find themselves. That State may, however, extradite the suspect to another State Party which is willing to prosecute him. Individuals accused of violating humanitarian law may also be tried by an international criminal court. The United Nations Security Council has established two such courts: the Tribunals for the former Yugoslavia and for Rwanda. On 17 July 1998, a Diplomatic Conference convened by the United Nations in Rome adopted the Statute of the International Criminal Court.
Conclusion:
The fact that people are killed or injured as a result of combat activities does not automatically mean that a crime has been committed. In order to evaluate whether or not a war crime has
been committed, it is necessary to determine the status of the individuals killed or injured (combatants or civilians), what they were doing at the time they were killed or injured (for combatants – had they surrendered or were they disabled and out of the fighting, for civilians – were they taking a direct part in hostilities), and the surrounding circumstances (was the attack in which the individuals were killed or injured directed against a military objective, if yes, was the attack one in which the anticipated losses to civilians and civilian objects was proportionate or disproportionate). In some circumstances it may be readily apparent that the persons killed or injured were or were not victims of war crimes. In others, however, a detailed analysis of the context may be necessary.
Bibliography
| Serial | Journals |
| 1 | Allan Rosas, P. S. (1987). The Frontiers of International Humanitarian Law. Journal of Peace Research, 219-236. |
| 2 | Charles worth, H. (2002). A Discipline of Crisis. The Modern Law Review, 377-392. |
| 3 | CRESCENT, T. R. (2011). International Humanitarian Law and. 31st INTERNATIONAL CONFERENCE, 32-35. |
| 4 | Goodman, R. (2006). Humanitarian Intervention and Pretexts for War. The American Journal of International Law, 107-141. |
| 5 | Kent, R. C. (2004). International Humanitarian Crises: Two Decades before and Two Decades beyond. International Affairs (Royal Institute of International Affairs 1944), 851-869. |
| 6 | L, D.-B. (2002). INTERNATIONAL HUMANITARIAN LAW. THE INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC) |
| 7 | Mckn, E. The new Oxford American Dictionary. Second Edition. |
| 8 | Meron, T. (2000). The Humanization of Humanitarian Law. The American Journal of International Law, 239-278. |
| 9 | Mona Fixdal, D. S. (1998). Humanitarian Intervention and Just War. Mershon International Studies Review, 283-312. |
| 10 | Parekh, B. (1997). Rethinking Humanitarian Intervention. International Political Science Review, 49-69. |
| 11 | Steven, P. (1987). Restatement of the Law: The foreign relations Law of the United Satates. American Law Institute. |
| 12 | Tanner, V. (2002). Reflections on Humanitarian Action: Principles, Ethics and Contradictions by The Humanitarian Studies Unit. Development in Practice, 555-557. |
| 13 | Weiss, T. G. (2001). Researching Humanitarian Intervention: Some Lessons. Journal of Peace Research, 419-428. |
| 14. | Weiss, T. G. (2001). Researching Humanitarian Intervention: Some Lessons. Journal of Peace Research, 419-428. |
[1] Parekh, B. (1997). Rethinking Humanitarian Intervention. International Political Science Review , 49-69.
[2] CRESCENT, T. R. (2011). International Humanitarian Law and. 31st INTERNATIONAL CONFERENCE , 32-35.
[3] Allan Rosas, P. S. (1987). The Frontiers of International Humanitarian Law. Journal of Peace Research , 219-236.
[4] Goodman, R. (2006). Humanitarian Intervention and Pretexts for War. The American Journal of International Law , 107-141.
[5] Kent, R. C. (2004). International Humanitarian Crises: Two Decades before and Two Decades beyond. International Affairs (Royal Institute of International Affairs 1944) , 851-869.
[6] Mckn, E. The new Oxford American Dictionary. Second Edition.
[7] Tanner, V. (2002). Reflections on Humanitarian Action: Principles, Ethics and Contradictions by TheHumanitarian Studies Unit. Development in Practice, , 555-557.