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 comprises of Geneva Conventions and Hague Conventions .International Humanitarian Law or I.H.L is a linkage between Humanity and Barbarism. The foundation of I.H.L was laid by two persons, Henry Dunant and Francis Lieber (around the mid 19th century), both unaware of the efforts of the other, making essential contributions to International Humanitarian law. Both Humanitarian Law and Human Rights Law look into the aspect of protection and provision of human dignity and guarantees of physical and mental well being. It is important to differentiate between international humanitarian law and human rights law. While some of their rules are related, these two bodies of law have developed disjointedly and are contained in different treaties. In particular, human rights law – unlike international humanitarian law –applies in peacetime, and many of its provisions may be suspended during an armed conflict. Also human rights are primarily concerned with how a government treats its own citizens whereas International Humanitarian Law looks into the War time situation and protection of people.
Tracing the events and Evolution of International Humanitarian Law
- 1863 Lieber Code
- 1864 Geneva Convention ( Henry Dunant and the Geneva law)
- 1868 ST. Petersburg Declaration ( Prohibition of use of minor projectiles)
- 1899 & 1907 Hague Conventions
- 1925 Geneva Gas Protocol ( Prohibiting use of Chemical and Bacteriological Weapons)
- 1929 Geneva Conventions ( Prisoner of War)
- 1949 GENEVA CONVENTIONS 1949
- GCI: Protection and care of Wounded and Sick at War times
- GCII: Amelioration of Wounded, Sick and Shipwrecked
- GCIII: Treatment of Prisoners of War
- GCIV: Protection of Civilian Persons
- 1977 ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS
- API: International Armed Conflict and protection of civilians
- APII: Non-International Armed Conflict
- Treaties prohibiting / Limiting the use of Weapons
- 1998 International Criminal Court (Rome) Statute
- 2005 ADDITIONAL PROTOCOLS – Re addition of the Emblem
International Humanitarian Law in relation to the State
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. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. The mutual respect of framework as how to unleash violence to adversary and to what limit are set by the international humanitarian law.
Lieber and Dunant essentially wanted that in situations of war there should be a principle distinction between the people involved and affected by the war, as in the Members of the fighting force, the combatants and the civilians. There should be a distinction between ‘Men’ and ‘Soldiers’ as war was a relationship between States and not man to man. The foundation of IHL is based on the idea that certain categories of individuals must be spared the effects of violence as far as possible regardless of the side to which they happen to belong and regardless of the justification given for armed conflict in the first place The fighting force is just an instrument at the hands of the state. Civilians have remained the primary victims of violations of IHL committed by both State parties and non-State armed groups.
For this exists The International Committee of the Red Cross (ICRC) –Switzerland, which is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance.
It directs and coordinates the international relief activities conducted by the Movement in situations of conflict. It also endeavors to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Politicization of such an organization defeats the purpose in the first place itself. IHL’s primary beneficiaries are civilians and persons hors de combat. (People out of the action of war/ people outside the fight). They have been used as human shields. IHL principles and standards, the alterations and tailoring of the law- has been the focus of expert debates and also of intense and wide-ranging governmental, academic and media scrutiny.
The non-application or selective application of IHL, or the misinterpretation of its rules for domestic or other political purposes, can and inevitably does, have a direct effect on the lives and livelihoods of those who are not or are no longer waging war.
Fundamentals or Structure on which international humanitarian law is based
(A result of the Geneva and Hague Conventions)
“ In cases not covered by this protocol ( Hague Convention IV – 1977) or by any other International agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and form the dictates of public conscience” – Martens Clause
This clause testifies to the completeness of the humanitarian protection
International Humanitarian Law has to make certain allowance in regard to war and legitimate military goals, its Military Necessity. Just because it is an International law need not mean that it can set up absolute prohibitions, it can limit the unnecessary harm and seeks humanitarian dimension in a conflict and this – is the target that it wishes to achieve. In current armed conflicts, the problem is not a lack of rules, but a lack of respect for them.
The International Humanitarian Law has various terminologies and definitions relating to war and as to how to go about it. A few of them being –
Jus Ad Bello: are the set of international rules that look into matters of armed conflict and the parties related to it. These rules are applicable to the between the parties related to the armed conflict.
Jus Ad Bellum: is the set of international rules governing the resort to armed conflict.
Military Necessity: it is the use of armed force in order to attain legitimate military objectives and complete submission of the enemy.
Proportionality: The ratio of the conflicting parties must be proportionally legitimate. There cannot be mass exploitation by a superior state to that of a militarily weak one. This keeps the war from its barbaric nature, keeping humanity in mind. There should be tempering down of limitless use of force.
Basic standards and guarantees of International Humanitarian Law
Persons or hors de combat are entitled to respect for their lives and moral and physical integrity.
One should distinguish, at all times, between civilian population and combatants. It is prohibited to launch attack against the civilian population.
It is forbidden to kill or injure an enemy who surrenders or hors de combat.
The wounded and sick shall be protected by all means and cared for.
Captured combatants or civilians are entitled to respect for their lives, dignity and personal rights. The law safeguards human rights from abuse by state power.
The victims of violations shall be entitled to benefit from judicial guarantees
They will not be subject to physical or mental torture, mutilation and corporal punishment, cruel or degrading treatment.
Either of the conflicting parties will not have unlimited or unrestricted means of warfare. War, that means, shall be waged in a ‘chivalrous’ manner.
The right of the parties to the conflict to adopt means of injuring the enemy is not unlimited
The Challenges faced while implementing International Humanitarian Law
Questions are often posed to principles of I.H.L. There is a demand for justification on the fundamentals: a challenge to the International Humanitarian Law. Hence, there are countless examples of violation of international humanitarian law and challenges in its implementation. The situations and handicaps being the following
On defining Humanity:
The law is just one among numerous tools used to standardize human behavior and no branch of law, whether international or domestic, can on its own, be expected to completely regulate a phenomenon as multifaceted as violence. The criticism usually given here is that what one can define as humanity is not fixed. Humanity in itself is a contested concept. No matter the amount of effort that I.H.L puts in to define it- can do so. Since there is no standardized definition- each manipulates it to their own use and hence I.H.L. loses the respect it so often deserves for its efforts.(whether rewarding or futile).Measures need to be taken to ensure respect for international humanitarian law so that there is a standardization of the law and acceptance of it. It must command and not hence, demand for the actions that it needs to take at times of armed conflict. International Humanitarian Law needs to be accepted as the universal body of law. And its universal application needs to be accepted and not questioned. This is one factor that I.HL faces while entering a conflict – that of its legitimacy.
I.H.L and the State:
In the first place itself, there has to be compliance of the state for these rules and regulations. The lack of it creates a problem in implementing the law. While IHL aims to circumscribe certain behavior in armed conflict, there will always be States, non State armed groups and individuals who will not be deterred from violating the rules, regardless of the penalty. If relied on as the sole tool for eliminating or reducing violence, it must be understood to have limits involved. States have an obligation to teach its rules to their armed forces and the general public. They must prevent violations or punish them if these nevertheless occur, which rarely happens. In particular, they must enact laws to punish the most serious violations of the Geneva Conventions and Additional Protocols, which are regarded as war crimes. Co-operation amongst the states is another hurdle in the implementation of the I.H.L. Time and again there are acts of violence which are transnational in character. Implementation of I.H.L then becomes a more complex task because with the involvement of more actors and institutions, there are more clauses, if’s and but’s which need to be taken care of. As for permit of IHL in the conflict one needs to strategically plan and discuss what they think would bait the two conflicting parties with- which would eventually allow IHL to perform its functions there.
The basic principles and rules governing the conduct of hostilities and the treatment of persons in enemy hands continue to reflect a reasonable and pragmatic balance between the demands of military necessity and those of humanity. The main cause of suffering during armed conflicts and of violations of IHL remains the failure to implement existing norms – whether owing to an absence of political will or to another reason – rather than a lack of rules or their inadequacy. However, there are important cases where international humanitarian law has made a difference in protecting civilians, prisoners, the sick and the wounded, and in restricting the use of barbaric weapons. Given that this body of law applies during times of extreme violence, implementing the law will always be a matter of great difficulty.
Another problem in the implementation of I.H.L is as to how it is funded and who funds. Also the political influence of that funding.
Lastly there is an internal problem as to how to enter about an armed conflict and the decision taking of what is to be done and how to go about it. Political, economic, societal, cultural and other factors that influence human conduct just as decisively must also be taken into account when contemplating comprehensive solutions to any form of violence.
The time since the law has been implemented; there have been a wide range of conflicts. There has been successful as well as unsuccessful intervention by the Law. For this matter, whether as individuals or through governments and various organizations, one needs to comply with international humanitarian law. The overall picture that emerges is one of well-established and mature body of law whose basic tenets, if applied in good faith and with the requisite political will, continue to serve their initial purpose – which is to regulate the conduct of war and thereby alleviate the suffering caused by war.
Another point that needs to be made is the process or working of the IHL. Be it via the International committee of the Red Cross or The United Nations, IHL has to be solely decisive and taking actions for whatever action taking place and not leave the decision in hands of superior influential nations or nations that at that particular event in time consider it their right and their duty and then personalize the efforts. Lastly, all human races are equal in demand of their basic human needs. IHL in its implementation has to learn to keep that in mind barring the political influence of its essential contributors. This seems to be a real handicap with case of IHL. The day there is equality in treatment with people of all nations; humanity will surely be equalized and easier to apply. That said, striving for effective compliance remains as urgent as ever. All one can do is just hope for the best.