International Humanitarian Law

This article is written by Tulip Das, currently pursuing BBA L.L.B(H) from Amity University Kolkata.

INTRODUCTION

International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that governs the conduct of war (Jus in Bello). It is a part of international law which attempts to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting and governing the means and methods of warfare available to combatants. IHL has its headquarters in Geneva, Switzerland.

The IHL regulates the activities during armed conflict and situations of occupation. It is distinguished from and applies irrespective of, the body of law that regulates the recourse to armed force. This framework is recognized as the jus ad bellum and is enshrined in the UN Charter. It regulates the conditions under which force may be used, namely in self-defence and pursuant to UN Security Council authorization. Whenever there is an armed conflict, IHL applies to all the parties, whether or not a party was legally justified in using force under the jus ad bellum principles.

The balance of humanity and military necessity is seen in the foundational IHL norms of distinction and proportionality. Parties to an armed conflict are needed to distinguish, at all times, between civilians and combatants and between civilian objects and military objects. Moreover, an attack may not be launched if it is anticipated to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive in relation to the direct military advantage expected. Additional IHL principles include the duty to take precautions to spare the civilian population before and during an attack, the prohibition against the infliction of unnecessary suffering or superfluous injury, and the prohibition of indiscriminate attacks.

Key Instruments of International Humanitarian Law

The two main sources of IHL rules and regulations are treaties and customary international law. Treaties are referred to as agreements between States, and those States that ratify a treaty are bound by its terms. Though a non-State armed group cannot sign a treaty, IHL treaty rules like Common Article Three and Additional Protocol II but apply to these actors too.

Many IHL rules are now considered to exhibit customary international law as well. Customary international law consists of rules acquired from the consistent practice of States based on a belief that the law requires them to act in that way. Such rules and regulations are binding on both states and non-State armed groups. The International Committee of the Red Cross published a study thereby creating a database on customary international humanitarian law.

The key IHL treaties incorporate the 1907 Hague Regulations, the four Geneva Conventions, and their Additional Protocols.

1907 Hague Regulations (Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907)
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
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005.

How Does IHL Protect?

IHL governs the manner of hostilities by the parties to a conflict and protects persons in enemy hands. It also:

• Requires the parties to a conflict to distinguish between combatants and civilians, and to abstain from attacking civilians

• Prohibits the use of weapons that are particularly cruel or that do not distinguish between combatants and civilians

• Requires the parties to a conflict to care for the wounded and sick and protect medical personnel

• Requires the parties to a conflict to ensure that the dignity of prisoners of war and civilian internees is preserved, in particular by allowing visits by the International Committee of the Red Cross delegates.

Whom Does IHL Protect?

IHL protects combatants and those who are not, or are no longer, participating in hostilities, such as:
• civilians
• medical and religious personnel
• wounded, shipwrecked and sick combatants
• prisoners of war
• civilian internees

Recognizing their specific needs, IHL grants women and children additional protection.

When Does IHL Protect?

IHL applies in three situations:

• International armed conflicts, which involve at least two nations

• Situations where the whole or part of a country’s territory is occupied by a foreign power

• Armed conflicts that arise within a country between a government and one or more organized armed groups, or between multiple organized armed groups.

IHL applies to all the parties to a conflict, regardless of who started it.

Application of International Humanitarian Law (IHL)

International Humanitarian Law (IHL) applies in situations of armed conflict. It offers two systems of protection: – one for international armed conflict and another for non-international armed conflict. The rules applicable in a specific situation will, hence, depend on the classification of the armed conflict.

A) International Armed Conflict (IAC)

IACs occurs when one or more States resort to the use of armed force against another State. An armed conflict between a State and an international organization is also categorised as an IAC. Wars of national liberation, in which peoples are fighting against colonial domination and alien occupation and racist regimes in the exercise of their right of self-determination, are classified as IACs under certain conditions.

B) Non-International Armed Conflict (NIAC)

Many armed conflicts today are non-international in nature. A NIAC is an armed conflict in which hostilities take place between the armed forces of a State and organized non-State armed groups, or between such groups. For hostilities to be considered a NIAC, they must reach a certain level of intensity and the groups involved must be adequately organized. IHL treaty law establishes a distinction between NIACs within the meaning of common Article 3 and NIACs falling within the definition provided in Article 1 of Additional Protocol II.

• Common Article 3 applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties.” These include armed conflicts in which one or more organized non-state armed groups are involved. NIACs may occur between State armed forces and organized non-State armed groups or only between such groups.

• Additional Protocol II applies to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” The definition of a NIAC in Additional Protocol II is narrower than the notion of NIAC under common Article 3 in two aspects.

1) It introduces a requirement of territorial control, by providing that organized non-State armed groups must exercise such territorial control “as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

2) Additional Protocol II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organized armed groups. Unlike common Article 3, Additional Protocol II does not apply to armed conflicts between organized non-State armed groups.

In this context, it must be kept in mind that Additional Protocol II “develops and supplements” common Article 3 “without modifying its existing conditions of application.” This means that this restrictive definition is relevant only for the application of Additional Protocol II; it does not extend to the law of NIAC in general.

CONCLUSION

Even wars have limits. International humanitarian law, whose bedrock is the Geneva Conventions, is a set of rules which endeavour to safeguard the people who are not, or are no longer, participating in the hostilities and to restrict the means and methods of warfare. International Humanitarian Law or the IHL is there for the safety of civilians, army personals and others who are involved and indulged in the war business. International Humanitarian Law is doing an extremely good job by protecting the people, we, as responsible individuals must say no to the concept of war and try our level best, be good, sincere, and honest and make the world a better place to live in. We must always remember the words of Thomas Mann who said that, “War is the only cowardly escape from the problems of peace”.

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