“The traces of International Humanitarian law can be found even in Ancient History which curtains that even then people were aware against the effects of war”. Discuss the History and development of International Humanitarian law under i) Islam and ii) Modern Period.”
Introduction
International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs. Universal codification of international humanitarian law began in the nineteenth century. Since then, States have agreed to a series of practical rules, based on the bitter experience of modern warfare. These rules strike a careful balance between humanitarian concerns and the military requirements of States. As the international community has grown, an increasing number of States have contributed to the development of those rules. International humanitarian law forms today a universal body of law.
International humanitarian law covers two areas: the protection of those who are not, or no longer, taking part in fighting; restrictions on the means of warfare – in particular weapons– and the methods of warfare, such as military tactics.
International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel. It also protects those who have ceased to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war. International humanitarian law prohibits all means and methods of warfare which: fail to discriminate between those taking part in the fighting and those, such as civilians, who are not, the purpose being to protect the civilian population, individual civilians and civilian property;
Cause superfluous injury or unnecessary suffering; cause severe or long-term damage to the environment. Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel
Mines.
With the advent of modern warfare and changing patterns of conflict, IHL was developed to relieve and reduce human suffering in times of conflict. The Sharia’s governs the Muslim way of life, covering not only religious, administrative and judicial aspects but also the conduct of war. The sources of Islamic law are the Qur’an and the Tradition of the Prophet Mohammad (Sunnah).
The 17th century opened the age of enlightenment which among other things witnessed the birth of humanization, an advanced and rational form of charity and justice. The philosophers refused to consider suffering as a fatality and no longer accepted the doctrine that every man was responsible for the misery in the world. They held that all men had equal and inalienable rights, which it was the responsibility of the states to guarantee.
International humanitarian law
International humanitarian law is referred to the law of war and its effects on people and their property and wealth. Its purpose is to protect those people who are exposed to be affected by the war. It is also known as the law of war or the law of armed conflict. IHL is a part of International law, which is responsible for governing the relation between different states. IHL is applied to armed conflicts without monitoring whether states use force to solve these war related conflicts.
IHL and war
Armed conflict is as old as humankind itself. There have always been customary practices in war, but only in the last 150 years have States made international rules to limit the effects of armed conflict for humanitarian reasons. The Geneva Conventions and the Hague Conventions are the main examples. Usually called international humanitarian law, it is also known as the law of war or the law of armed conflict. The cornerstone of IHL is the Geneva Conventions. The first was signed by 16 countries in 1864. For centuries before then, rules had applied to the conduct of war, but they were based on custom and tradition, were local or just temporary. 1864 changed all that and began a process of building a body of law that is still evolving today.
The Law of The Hague, or the Laws of War proper, “determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm.” In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives.
Ancient History
However, even in the midst of the carnage of history, there were expressions of humanitarian norms to protect the victims of armed conflicts, i.e. the wounded, the sick and the shipwrecked which date back to ancient times. In ancient India there are records, for example the Laws of Manu, describing the types of weapons that should not be used. There is also the command not to strike a eunuch nor the enemy “who folds his hands in supplication….Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight.
History and development
International humanitarian law has a brief but eventful history. It was not until the second half of
The nineteenth century that nations agreed on international rules to avoid needless suffering in
Wars-rules they bound themselves to observe in a Convention.
Since then, the changing character of armed conflict and the destructive potential of modern
Weapons have made necessary many revisions and extensions of humanitarian law in long and patient negotiations. The evolution of international law related to the protection of war-victims and to the conduct of war has been strongly affected by the development of human rights legal protection after the Second World War. The adoption of important international instruments in the field of human rights-such as The Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1950) and the International Covenant on Civil and Political Rights (1966)-contributed to affirm the idea that everyone is entitled to the enjoyment of human rights, whether in time of peace or war.
IHL under Islam
“The protection of human life, property and dignity… these are universal Islamic doctrines that predate IHL,” said the Syrian Islamic scholar, Dr Wahbeh Al-Zuhili, who is considered an authority on Islamic law. This was also pointed out by Dr Ameur Zemmali, ICRC adviser, pointed out in his presentation on the Geneva Conventions and their additional Protocols, their history, interpretation and application. According to Professor Salah Abdul-Badi Shalaby from Egypt, Islam clearly differentiates between a combatant and a non-combatant. Islamic rules also lay out comprehensive guidelines for the protection of non-combatants, which are similar to the provisions enshrined in IHL. One such shared provision is the importance of a sanctuary within war zone. Similarly, both laws strongly advocate humane treatment of the enemy. Interestingly, Islamic law also provides for the provision of water to enemy camp. The treatment of prisoners of war also clearly outlined in Islam as it is the IHL, both advocating compassion to the captured enemy. “Treat people the way you want them to treat you,” said a senior Saudi scholar Dr Abdul Rahman bin Zayd al-Zinedi, explaining Islam’s emphasis on forgiveness. There is also coherence between the two systems of law over treatment of medical personnel, women and children, the injured, the missing, the dead and displaced people.
Although Islam suggests reciprocity of action, the Muslim scholars present at the conference were of the view that forgiveness and compassion are preferred acts in Islam. It was perhaps due to this reason that Muslim scholars trained to select the more flexible verses from the Qur’an concerning similar issues. Explaining this practice, the Syrian scholar Dr Wahbeh Al-Zuhili said, “Although the Qur’an may have more than one verse pertaining to a certain issue, the scholars choose the one that is flexible when formulating a law.”
Therefore, Islam prohibits immorality, humiliation, neglect and excesses the dignity of human beings, even when committed against the enemy. Collateral damage, too, is covered by the Shari’a, prescribing compensation for loss of life and property to non-combatants, either 5
Muslims or non-Muslims, in the course of a conflict, Ethnic cleansing is also strictly prohibited by Islam, as all races are the creation of God — another common ground with IHL. Despite an agreement between IHL and Islamic law on the sanctity human life, property and dignity and their focus on achieving peaceful coexistence, mutual respect and cooperation in all spheres of life, there still remain certain areas where opinion differs. This may be due to interpretations that more political than academic.
IHL under modern period
The modern concept of international humanitarian law has developed over thelast few decades to describe what was earlier referred to as the jus in bello, the law of armed conflict or the laws of war. It is important to distinguish between the rules applicable during armed conflict – the jus in bello – and the law relating resort to force, that is, the jus ad bellum. The latter is regulated by The United Nations Charter. The idea of rules to regulate armed conflict is almost as old as conflict itself, and is recognized in religious texts such as the Koran and the Bible, as well as the writings of ancient scholars and philosophers. Already in ancient times rules existed to regulate the conduct of warfare which over time evolved into customary rules. The beginning of modern international humanitarian law in the sense of the modern movement to codify and develop customary international law dates back to the middle of the nineteenth century. The process of drafting and adopting rules has mainly taken place in The Hague and in Geneva. The so-called Hague law is concerned with the means and methods of warfare whereas Geneva law is concerned with the protection of individuals.
Where is International humanitarian law to be found?
A major part of international humanitarian law is contained in the four Geneva Conventions of1949. Nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977relating to the protection of victims of armed conflicts. Other agreements prohibit the use
of certain weapons and military tactics and protect certain categories of people and goods.
These agreements include: 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.
Restrictions of IHL
International humanitarian law prohibits all means and methods of warfare which: fail to discriminate between those taking part in the fighting and those, such as civilians, who are not, the purpose being to protect the civilian population, individual civilians and civilian property;
Cause superfluous injury or unnecessary suffering; cause severe or long-term damage to the environment. Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.
Is IHL actually complied with?
Sadly, there are countless examples of violation of international humanitarian law. Increasingly, the victims of war are civilians. 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. That said, striving for effective compliance remains as urgent as ever.
Concluding remarks
Measures must be taken to ensure respect for international humanitarian law. 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.
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. The States must also pass laws protecting the Red Cross and Red Crescent emblems.
Conclusion
International Humanitarian Law is increasingly perceived as part of human rights applicable in armed conflict. It was developed at a time when recourse to force was not illegal as an instrument of national policy. Although it is true that one of the influences on the development of the law in Europe was the church just war doctrine, which also encompassed the justice resorting to force the foundations of international Humanitarian Law were laid at a time when there was no disgrace in beginning a war. The law was therefore, in large part based on the appropriate respect that was due to another professional army. We will here as a good illustration of the philosophy underlying the customary law of the war the Lieber Code of as this Code was used as the principal basis for development of the Hague Conventions of 1899 an 1907 which in turn influenced later development.
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