From Wikipedia, the free encyclopedia
International humanitarian law (
IHL) is the law that regulates the conduct of
war (
jus in bello). It is that branch of
international law
which seeks to limit the effects of armed conflict by protecting
persons who are not participating in hostilities, and by restricting and
regulating the means and methods of warfare available to
combatants.
IHL is inspired by considerations of humanity and the mitigation
of human suffering. "It comprises a set of rules, established by treaty
or custom, that seeks to protect persons and property/objects that are
(or may be) affected by armed conflict and limits the rights of parties
to a conflict to use methods and means of warfare of their choice". It includes "the
Geneva Conventions and the
Hague Conventions, as well as subsequent treaties,
case law, and
customary international law". It defines the conduct and responsibilities of
belligerent nations,
neutral nations, and individuals engaged in warfare, in relation to each other and to
protected persons, usually meaning
non-combatants. It is designed to balance humanitarian concerns and
military necessity, and subjects warfare to the rule of law by limiting its destructive effect and mitigating human suffering.
Serious violations of international humanitarian law are called
war crimes. International humanitarian law,
jus in bello, regulates the conduct of forces when engaged in war or armed conflict. It is distinct from
jus ad bellum which regulates the conduct of engaging in war or armed conflict and includes
crimes against peace and of
war of aggression. Together the
jus in bello and
jus ad bellum comprise the two strands of the
laws of war governing all aspects of international armed conflicts.
The law is mandatory for nations bound by the appropriate
treaties. There are also other customary unwritten rules of war, many of
which were explored at the
Nuremberg War Trials. By extension, they also define both the
permissive rights of these powers as well as
prohibitions on their conduct when dealing with irregular forces and non-signatories.
International humanitarian law operates on a strict division between rules applicable in international armed conflict and
internal armed conflict. This dichotomy is widely criticized.
The relationship between
international human rights law
and international humanitarian law is disputed among international law
scholars. This discussion forms part of a larger discussion on
fragmentation of international law.
While pluralist scholars conceive international human rights law as
being distinct from international humanitarian law, proponents of the
constitutionalist approach regard the latter as a subset of the former.
In a nutshell, those who favor separate, self-contained regimes
emphasize the differences in applicability; international humanitarian
law applies only during armed conflict. On the other hand, a more
systemic perspective explains that international humanitarian law
represents a function of international human rights law; it includes
general norms that apply to everyone at all time as well as specialized
norms which apply to certain situations such as armed conflict and
military occupation (i.e., IHL) or to certain groups of people including
refugees (e.g., the 1951
Refugee Convention), children (the 1989
Convention on the Rights of the Child), and
prisoners of war (the 1949
Third Geneva Convention).
Democracies are likely to protect the rights of all individuals within their territorial jurisdiction.
Two historical streams: The Law of Geneva and The Law of The Hague
Modern international humanitarian law is made up of two historical streams:
- The law of The Hague, referred to in the past as the law of war proper; and
- The law of Geneva, or humanitarian law.
The two streams take their names from a number of international
conferences which drew up treaties relating to war and conflict, in
particular the Hague Conventions of 1899 and 1907, and the Geneva
Conventions, the first which was drawn up in 1863. Both deal with
jus in bello, which deals with the question of whether certain practices are acceptable during armed conflict.
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.
Systematic attempts to limit the savagery of warfare only began to
develop in the 19th century. Such concerns were able to build on the
changing view of warfare by states influenced by the Age of
Enlightenment. The purpose of warfare was to overcome the enemy state,
which could be done by disabling the enemy combatants. Thus, "the
distinction between combatants and civilians, the requirement that
wounded and captured enemy combatants must be treated humanely, and that
quarter must be given, some of the pillars of modern humanitarian law,
all follow from this principle".
The Law of Geneva
The massacre of civilians in the midst of armed conflict has a long and dark history. Selected examples include
to name only a few examples drawn from a long list in history. Fritz
Munch sums up historical military practice before 1800: "The essential
points seem to be these: In battle and in towns taken by force,
combatants and non-combatants were killed and property was destroyed or
looted." In the 17th century, the Dutch jurist
Hugo Grotius,
widely regarded as the founder or father of public international law,
wrote that "wars, for the attainment of their objects, it cannot be
denied, must employ force and terror as their most proper agents".
Humanitarian norms in history
Even
in the midst of the carnage of history, however, there have been
frequent expressions and invocation of humanitarian norms for the
protection of the victims of armed conflicts: the wounded, the sick and
the shipwrecked. These date back to ancient times.
In the Old Testament, the King of Israel prevents the slaying of
the captured, following the prophet Elisha's admonition to spare enemy
prisoners. In answer to a question from the King, Elisha said, "You
shall not slay them. Would you slay those whom you have taken captive
with your sword and with your bow? Set bread and water before them, that
they may eat and drink and go to their master."
In ancient India there are records (the
Laws of Manu,
for example) describing the types of weapons that should not be used:
"When he fights with his foes in battle, let him not strike with weapons
concealed (in wood), nor with (such as are) barbed, poisoned, or the
points of which are blazing with fire."
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."
Islamic law states that "
non-combatants
who did not take part in fighting such as women, children, monks and
hermits, the aged, blind, and insane" were not to be molested. The first Caliph,
Abu Bakr,
proclaimed, "Do not mutilate. Do not kill little children or old men or
women. Do not cut off the heads of palm trees or burn them. Do not cut
down fruit trees. Do not slaughter livestock except for food."
Islamic jurists have held that a prisoner should not be killed, as he
"cannot be held responsible for mere acts of belligerency".
Islamic law did not spare all non-combatants, however. In the
case of those who refused to convert to Islam, or to pay an alternative
tax, Muslims "were allowed in principle to kill any one of them,
combatants or noncombatants, provided they were not killed treacherously
and with mutilation".
Codification of humanitarian norms
The
most important antecedent of IHL is the current Armistice Agreement and
Regularization of War, signed and ratified in 1820 between the
authorities of the then Government of Great Colombia and the Chief of
the Expeditionary Forces of the Spanish Crown, in the Venezuelan city of
santa Ana de Trujillo. This treaty was signed under the conflict of
Independence, being the first of its kind in the West.
It was not until the second half of the 19th century, however,
that a more systematic approach was initiated. In the United States, a
German immigrant,
Francis Lieber, drew up a code of conduct in 1863, which came to be known as the
Lieber Code, for the
Union Army during the
American Civil War.
The Lieber Code included the humane treatment of civilian populations
in the areas of conflict, and also forbade the execution of
POWs.
The Law of Geneva is directly inspired by the
principle of humanity. It relates to those who are not participating in the conflict, as well as to military personnel
hors de combat. It provides the legal basis for protection and
humanitarian assistance carried out by impartial humanitarian organizations such as the ICRC.
[24] This focus can be found in the
Geneva Conventions.
Geneva Conventions
Progression of Geneva Conventions from 1864 to 1949.
The Geneva Conventions are the result of a process that
developed in a number of stages between 1864 and 1949. It focused on the
protection of civilians and those who can no longer fight in an armed
conflict. As a result of World War II, all four conventions were
revised, based on previous revisions and on some of the 1907 Hague
Conventions, and readopted by the international community in 1949. Later
conferences have added provisions prohibiting certain methods of
warfare and addressing issues of civil wars.
The first three Geneva Conventions were revised, expanded, and replaced, and the fourth one was added, in 1949.
There are three additional amendment protocols to the Geneva Convention:
- Protocol I
(1977): Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed
Conflicts. As of 12 January 2007 it had been ratified by 167 countries.
- Protocol II
(1977): Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-International
Armed Conflicts. As of 12 January 2007 it had been ratified by 163
countries.
- Protocol III
(2005): Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Adoption of an Additional Distinctive Emblem.
As of June 2007 it had been ratified by seventeen countries and signed
but not yet ratified by an additional 68.
The Geneva Conventions of 1949 may be seen, therefore, as the result
of a process which began in 1864. Today they have "achieved universal
participation with 194 parties". This means that they apply to almost
any international armed conflict.
The Additional Protocols, however, have yet to achieve near-universal
acceptance, since the United States and several other significant
military powers (like Iran, Israel, India and Pakistan) are currently
not parties to them.
Historical convergence between IHL and the laws of war
With the adoption of the
1977 Additional Protocols to the Geneva Conventions,
the two strains of law began to converge, although provisions focusing
on humanity could already be found in the Hague law (i.e. the protection
of certain prisoners of war and civilians in occupied territories). The
1977 Additional Protocols, relating to the protection of victims in
both international and internal conflict, not only incorporated aspects
of both the Law of The Hague and the Law of Geneva, but also important
human rights provisions.
Basic rules of IHL
- Persons who are hors de combat (outside of combat), and those who are not taking part in hostilities in situation of armed conflict (e.g., neutral nationals), shall be protected in all circumstances.
- The wounded and the sick shall be cared for and protected by the
party to the conflict which has them in its power. The emblem of the
"Red Cross", or of the "Red Crescent," shall be required to be respected
as the sign of protection.
- Captured persons must be protected against acts of violence and
reprisals. They shall have the right to correspond with their families
and to receive relief.
- No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
- Parties to a conflict do not have an unlimited choice of methods and means of warfare.
- Parties to a conflict shall at all times distinguish between
combatants and non-combatants. Attacks shall be directed solely against legitimate military targets.
Examples
Well-known examples of such rules include the prohibition on attacking
doctors or
ambulances displaying a
red cross.
It is also prohibited to fire at a person or vehicle bearing a white
flag, since that, being considered the flag of truce, indicates an
intent to surrender or a desire to communicate. In either case, the
persons protected by the Red Cross or the white flag are expected to
maintain neutrality, and may not engage in warlike acts themselves;
engaging in war activities under a white flag or a red cross is itself a
violation of the laws of war.
These examples of the laws of war address
- declarations of war;
- acceptance of surrender;
- the treatment of prisoners of war;
- the avoidance of atrocities;
- the prohibition on deliberately attacking non-combatants; and
- the prohibition of certain inhumane weapons.
It is a violation of the laws of war to engage in combat without
meeting certain requirements, among them the wearing of a distinctive
uniform
or other easily identifiable badge, and the carrying of weapons openly.
Impersonating soldiers of the other side by wearing the enemy's uniform
is allowed, though fighting in that uniform is unlawful
perfidy, as is the taking of
hostages.
Later additions
International
humanitarian law now includes several treaties that outlaw specific
weapons. These conventions were created largely because these weapons
cause deaths and injuries long after conflicts have ended. Unexploded
land mines have caused up to 7,000 deaths a year; unexploded bombs, particularly from
cluster bombs
that scatter many small "bomblets", have also killed many. An estimated
98% of the victims are civilian; farmers tilling their fields and
children who find these explosives have been common victims. For these
reasons, the following conventions have been adopted:
- The Convention
on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects (1980), which prohibits weapons that produce non-detectable fragments, restricts (but does not eliminate) the use of mines and booby-traps, prohibits attacking civilians with incendiary weapons, prohibits blinding laser weapons, and requires the warring parties to clear unexploded ordnance at the end of hostilities;
- The Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction
(1997), also called the Ottawa Treaty
or the Mine Ban Treaty, which completely bans the stockpiling (except
to a limited degree, for training purposes) and use of all anti-personnel land mines;
- The Optional Protocol on the Involvement of Children in Armed Conflict
(2000), an amendment to the Convention on the Rights of the Child
(1989), which forbids the enlistment of anyone under the age of eighteen
for armed conflict; and
- The Convention on Cluster Munitions
(2008), which prohibits the use of bombs that scatter bomblets, many of
which do not explode and remain dangerous long after a conflict has
ended.
International Committee of the Red Cross
The ICRC is the only institution explicitly named under international
humanitarian law as a controlling authority. The legal mandate of the
ICRC stems from the four Geneva Conventions of 1949, as well as from its
own Statutes.
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The
International Committee of the Red Cross (ICRC) 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.
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| — Mission of ICRC
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Violations and punishment
During conflict,
punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in
reprisal.
Spies and
terrorists
are only protected by the laws of war if the "power" which holds them
is in a state of armed conflict or war, and until they are found to be
an "unlawful combatant". Depending on the circumstances, they may be
subject to civilian law or a military tribunal for their acts. In
practice, they have often have been subjected to
torture and execution. The laws of war neither approve nor condemn such acts, which fall outside their scope.
Spies may only be punished following a trial; if captured after
rejoining their own army, they must be treated as prisoners of war.
Suspected terrorists who are captured during an armed conflict, without
having participated in the hostilities, may be detained only in
accordance with the
GC IV, and are entitled to a regular trial. Countries that have signed the
UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.
After a conflict has ended, persons who have committed any breach
of the laws of war, and especially atrocities, may be held individually
accountable for
war crimes through process of
law.
Key provisions and principles applicable to civilians
The
Fourth Geneva Convention focuses on the civilian population. The two
additional protocols adopted in 1977 extend and strengthen civilian
protection in international (AP I) and non-international (AP II) armed
conflict: for example, by introducing the prohibition of direct attacks
against civilians. A "civilian" is defined as "any person not belonging
to the armed forces", including non-nationals and refugees.
However, it is accepted that operations may cause civilian casualties.
Luis Moreno Ocampo, chief prosecutor of the international criminal
court, wrote in 2006: "International humanitarian law and the
Rome statute
permit belligerents to carry out proportionate attacks against military
objectives, even when it is known that some civilian deaths or injuries
will occur. A crime occurs if there is an intentional attack directed
against civilians (principle of distinction) ... or an attack is
launched on a military objective in the knowledge that the incidental
civilian injuries would be clearly excessive in relation to the
anticipated military advantage (principle of proportionality)."
The provisions and principles of IHL which seek to protect civilians are:
IHL provisions and principles protecting civilians
Principle of distinction
The principle of
distinction
protects civilian population and civilian objects from the effects of
military operations. It requires parties to an armed conflict to
distinguish at all times, and under all circumstances, between
combatants and military objectives on the one hand, and civilians and
civilian objects on the other; and only to target the former. It also
provides that civilians lose such protection should they take a direct
part in hostilities.
The principle of distinction has also been found by the ICRC to be
reflected in state practice; it is therefore an established norm of
customary international law in both international and non-international
armed conflicts.
Necessity and proportionality
Necessity and
proportionality
are established principles in humanitarian law. Under IHL, a
belligerent may apply only the amount and kind of force necessary to
defeat the enemy. Further, attacks on military objects must not cause
loss of civilian life considered excessive in relation to the direct
military advantage anticipated. Every feasible precaution must be taken by commanders to avoid civilian casualties.
The principle of proportionality has also been found by the ICRC to
form part of customary international law in international and
non-international armed conflicts.
Principle of humane treatment
The principle of humane treatment requires that civilians be treated humanely at all times.
Common Article 3 of the GCs prohibits violence to life and person
(including cruel treatment and torture), the taking of hostages,
humiliating and degrading treatment, and execution without regular trial
against non-combatants, including persons
hors de combat
(wounded, sick and shipwrecked). Civilians are entitled to respect for
their physical and mental integrity, their honour, family rights,
religious convictions and practices, and their manners and customs.
This principle of humane treatment has been affirmed by the ICRC as a
norm of customary international law, applicable in both international
and non-international armed conflicts.
Principle of non-discrimination
The
principle of non-discrimination is a core principle of IHL. Adverse
distinction based on race, sex, nationality, religious belief or
political opinion is prohibited in the treatment of prisoners of war, civilians, and persons hors de combat.
All protected persons shall be treated with the same consideration by
parties to the conflict, without distinction based on race, religion,
sex or political opinion. Each and every person affected by armed conflict is entitled to his fundamental rights and guarantees, without discrimination.
The prohibition against adverse distinction is also considered by the
ICRC to form part of customary international law in international and
non-international armed conflict.
Women and children
Women
and children are granted preferential treatment, respect and
protection. Women must be protected from rape and from any form of
indecent assault. Children under the age of eighteen must not be
permitted to take part in hostilities.
Gender and culture
Gender
IHL
emphasises, in various provisions in the GCs and APs, the concept of
formal equality and non-discrimination. Protections should be provided
"without any adverse distinction founded on sex". For example, with
regard to female prisoners of war, women are required to receive
treatment "as favourable as that granted to men".
In addition to claims of formal equality, IHL mandates special
protections to women, providing female prisoners of war with separate
dormitories from men, for example, and prohibiting sexual
violence against women.
The reality of women's and men's lived experiences of conflict
has highlighted some of the gender limitations of IHL. Feminist critics
have challenged IHL's focus on male combatants and its relegation of
women to the status of victims, and its granting them legitimacy almost
exclusively as child-rearers. A study of the 42 provisions relating to
women within the Geneva Conventions and the Additional Protocols found
that almost half address women who are expectant or nursing mothers. Others have argued that the issue of sexual violence against men in conflict has not yet received the attention it deserves.
Soft-law instruments have been relied on to supplement the protection of women in armed conflict:
- UN Security Council Resolutions 1888 and 1889 (2009), which aim to enhance the protection of women and children against sexual violations in armed conflict; and
- Resolution 1325, which aims to improve the participation of women in post-conflict peacebuilding.
In addition, international criminal tribunals (like the
International Criminal Tribunals for the former Yugoslavia and
Rwanda) and mixed tribunals (like the
Special Court for Sierra Leone)
have contributed to expanding the scope of definitions of sexual
violence and rape in conflict. They have effectively prosecuted sexual
and gender-based crimes committed during armed conflict. There is now
well-established jurisprudence on gender-based crimes. Nonetheless,
there remains an urgent need to further develop constructions of gender
within international humanitarian law.
Culture
IHL has generally not been subject to the same debates and criticisms of "
cultural relativism" as have
international human rights.
Although the modern codification of IHL in the Geneva Conventions and
the Additional Protocols is relatively new, and European in name, the
core concepts are not new, and laws relating to warfare can be found in
all cultures.
ICRC studies on the Middle East, Somalia, Latin America, and the
Pacific, for example have found that there are traditional and
long-standing practices in various cultures that preceded, but are
generally consistent with, modern IHL. It is important to respect local
and cultural practices that are in line with IHL. Relying on these links
and on local practices can help to
promote awareness of and adherence to IHL principles among local groups and communities.
Durham cautions that, although traditional practices and IHL
legal norms are largely compatible, it is important not to assume
perfect alignment. There are areas in which legal norms and cultural
practices clash. Violence against women, for example, is frequently
legitimised by arguments from culture, and yet is prohibited in IHL and
other international law. In such cases, it is important to ensure that
IHL is not negatively affected.
