INTERNATIONAL HUMANITARIAN LAW- A BRIEF ANALYSIS [PART 1]

TANU PRIYA

SIDDHARTHA LAW COLLEGE, DEHRADUN

(First Published on Volume 01 Issue 01, May 2016)

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INTRODUCTION

The international humanitarian law is comprised of international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts. Its principal aims are to protect persons and property that are, or may be, affected by the conflict - e.g. civilians and prisoners of war and civilian objects - and to limit the right of the parties to a conflict to use methods and means of warfare of their choice.

It is primarily the duty of states to respect and ensure respect for the international humanitarian law. Other actors also play a role in IHL implementation - in particular, the International Committee of the Red Cross (ICRC), which has been mandated by the international community with specific protection and assistance tasks in times of armed conflict. The United Nations and NGOs are also increasingly relying on IHL to better advocate on behalf of civilians affected by armed conflict. IHL, which is applicable only in times of armed conflict, does not deal with the legality of the use of force by states or other actors but applies whenever an armed conflict breaks out regardless of the underlying reasons. The legality of the use of force in international relations is regulated by the UN Charter and by customary international law.

Example:

War is raging between Country Y and Country X. Humanitarian agency representatives are travelling across the frontlines to provide aid and protection to the civilian population. The parties to the conflict are prohibited from attacking or deliberately harming civilians, including humanitarian personnel. Attacks must be restricted to military objectives only.

Basic Rule of International humanitarian law

The lives, physical and moral integrity of persons not taking, or no longer taking an active part in hostilities must be respected. They must in all circumstances be protected and treated humanely without discrimination. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat. The wounded and sick must be collected and cared for by the party holding them. Protection also covers medical personnel, establishments, transports and equipment. The Red Cross or Red Crescent emblems must also be respected. The lives, dignity, personal rights and convictions of captured combatants and civilians under the authority of an adverse party must be respected. They must be protected against all acts of violence and reprisals. Everyone has the right to benefit from fundamental judicial guarantees. No one shall be responsible for an act he or she has not committed. No one shall be subjected to torture, corporal punishment or cruel and degrading treatment.

The parties to a conflict 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. 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 population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely at military objectives.

Instruments of IHL

IHL consists of a large number of international treaties that have been developed over the past 150 years, starting with the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. The bulk of modern IHL is, however, composed of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977:

• Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.Geneva, 12 August 1949.
• Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
• Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
• Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

International humanitarian law- Care for all wounded on the battlefield

International humanitarian law forms a major part of the public international law 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.

Geneva and The Hague

International humanitarian law (IHL) – also known as the law of armed conflicts or law of war – has two branches:

• the “law of Geneva”, which is designed to safeguard military personnel who are no longer taking part in the fighting and people not actively involved in hostilities, i.e. civilians;

• the “law of The Hague”, which establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the enemy.

The two branches of IHL draw their names from the cities where each was initially codified. With the adoption of the Additional Protocols of 1977, which combine both branches,

that distinction is now of merely historical and didactic value.

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.

The 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.

The 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. The international humanitarian law is also known as the law of war or the law of armed conflict. The international humanitarian law 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.

The 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.

BRANCHES OF PUBLIC INTERNATIONAL LAW:

1. REFUGEE LAW
2. MARITIME LAW
3. INTERNATIONAL HUMANITARIAN LAW
4. LAWS GOVERNING SPACE
5. ENVIRONMENTAL LAW
6. LAWS GOVERNING INTERNATIONAL ORGANISATIONS
7. LAWS GOVERNING ECONOMIC RELATIONS
8. LAWS GOVERNING STATE RESPONSIBILITY
9. LAWS GOVERNING DIPLOMATIC RELATIONS
10. LAWS GOVERNING THE PEACEFUL SETTLEMENT OF CONFLICTS
11. HUMAN RIGHTS LAW

ORIGIN OF INTERNATIONAL HUMANITARIAN LAW

The 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.

A major part of the international humanitarian law is contained in the four Geneva Conventions of 1949. 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 1977 relating 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 the international humanitarian law are now accepted as customary law – that is, as general rules by which all States are bound.

APPLICATION OF IHL

The international humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting.

The international humanitarian law distinguishes between international and non-international armed conflict.

International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol:

 I. Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol.

II. It is important to differentiate between international humanitarian law and human rights law. While some of their rules are similar, these two bodies of law have developed separately 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.

The international humanitarian law contains basic principles and rules governing the choice of weapons and prohibits or restricts the employment of certain weapons. The ICRC plays a leading role in the promotion and development of law regulating the use of certain weapons.

Restrictions on Weapon & Tactics

The international humanitarian law prohibits all means and methods of warfare which:

1. 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;
2. cause superfluous injury or unnecessary suffering;
3. 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.

Actual Scenario of IHL

Sadly, there are countless examples of violation of the international humanitarian law. Increasingly, the victims of war are civilians. However, there are important cases where the 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.

Rules on Humanitarian Assistance in Armed Conflict

Humanitarian assistance in situations of armed conflict is primarily regulated by international humanitarian law. In international armed conflict, the basic rule is that a state must accept relief actions for the civilian population of any territory under its control (other than occupied territory, mentioned below) when the population is not adequately supplied and when relief, which is humanitarian and impartial in nature, is available. Refusing a relief action is thus not a matter of discretion and agreement could be withheld only for exceptional reasons. In any event, offers of relief shall not be regarded as interference in the armed conflict or as unfriendly acts.

The basic rule with respect to occupied territory is that the occupying power has the duty of ensuring the food and medical supplies of the population and that it should bring in the necessary foodstuffs, medicine and other articles if the resources of the occupied territory are inadequate. If, however, the whole or part of the population in an occupied territory is inadequately supplied, the occupying power must agree to relief schemes and must facilitate them by all means at its disposal.

Similar rules apply in non-international armed conflicts as well. Humanitarian agencies may offer their services, and the state involved must, in principle, allow humanitarian assistance.

Meaning of Protection under IHL

The 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 parts, such as wounded, shipwrecked and sick combatants and prisoners of war.

These categories of person are entitled to respect for their lives and for their physical and mental integrity. They also enjoy legal guarantees. They must be protected and treated humanely in all circumstances, with no adverse distinction.

More specifically: it is forbidden to kill or wound an enemy who surrenders or is unable to fight; the sick and wounded must be collected and cared for by the party in whose power they find themselves. Medical personnel, supplies, hospitals and ambulances must all be protected. There are also detailed rules governing the conditions of detention for prisoners of war and the way in which civilians are to be treated when under the authority of an enemy power.

This includes the provision of food, shelter and medical care, and the right to exchange messages with their families. The law sets out a number of clearly recognizable symbols which can be used to identify protected people, places and objects. The main emblems are the red cross, the red crescent and the symbols identifying the cultural property and civil defence facilities.

The international humanitarian law contains numerous provisions obliging parties to an armed conflict to respect and protect humanitarian personnel and to enable them to assist and protect victims of armed conflict. The parties also have an obligation to protect relief consignments and facilitate their rapid distribution. While the exact principles operationally guiding the work of humanitarian agencies are determined by each individual organization, it is also a general IHL rule that assistance missions must be humanitarian and impartial in character and be conducted on a non-discriminatory basis. Under the Statute of the International Criminal Court, it is a war crime to intentionally attack "personnel, installations, material, units or vehicles involved in a humanitarian assistance" mission in both international and non-international armed conflict.

In addition to the protection enjoyed by all humanitarian personnel under the international humanitarian law, UN humanitarian workers also enjoy legal protection under the 1994 Convention on the Safety of United Nations and Associated Personnel.

[CONTINUED IN PART 2]