Abstract
Noam Chomsky’s quote, “If it’s wrong when they do it, it’s wrong when we do it,” focuses the core principles of International Law. Post-World War II, following the Nazi atrocities, the United Nations was founded to shield individuals from the horrors of armed conflict, which formed the Geneva Convention. Geneva Conventions are fundamental to International Humanitarian Law (IHL), emphasizing the importance of differentiating between non-combatants and military personnel and prohibiting needless suffering. However, modern conflicts, characterized by sophisticated warfare technologies and complex global dynamics, pose significant challenges. Ensuring compliance requires joint efforts from bodies like the International Committee of the Red Cross and the United Nations. The conflicts in Yugoslavia and Israel-Palestine underscore the critical role of IHL.
Key Words
Human Rights, International Humanitarian Law, Armed Force, Geneva Convention, Red cross
Introduction
It was very well said by Noam Chomsky that “If it’s wrong when they do it, it’s wrong when we do it.” When we are talking to comprehend International Law and International Humanitarian Law, we need to grasp the fundamental reasons for their establishment, particularly why they became urgently necessary after the Second World War and why they remain crucial today.
Before diving into Humanitarian rights, it is basic to to begin with its broader concept of human rights. All through history, from the first light of civilization, human rights have been a subject of noteworthy wrangle about and contention.
Numerous social orders have long grasped standards associated to the “Golden rule”, treating others as one would like to be treated. Ancient texts like the Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran, and the Analects of Confucius are among the earliest documents that discuss human responsibilities, rights, and duties.
In the aftermath of World War II and the Holocaust, where over six million Jews and other marginalized groups were systematically exterminated by the Nazis, world governments founded the United Nations and drafted the United Nations Charter in 1945 to prevent future atrocities. The preamble of the Universal Declaration of Human Rights highlights the importance of acknowledging the inherent dignity and the equal and inalienable rights of every individual as essential for ensuring freedom, justice, and peace. Article 1 reinforces this by stating that all people are born free and equal in dignity and rights, endowed with reason and conscience, and should act towards one another in a spirit of brotherhood.
While the importance of Human Rights is widely acknowledged, there is still some confusion about its role and nature in international law. Following the establishment of the United Nations and the adoption of the UN Charter in 1945, the UN General Assembly adopted the Universal Declaration of Human Rights on December 10, 1948. This declaration set forth international human rights obligations that states must adhere to. By signing international treaties, states agree to respect, protect, and uphold human rights in accordance with international law. States have three main duties regarding human rights: to respect by avoiding interference, to protect by safeguarding against abuses, and to fulfil by taking proactive steps to ensure their enjoyment.
But the question is what is International Humanitarian Law? Firstly, we need to shine light upon its true nature, humanitarian law is also known as the law of the wars which indicates that it is primarily a law made for the protection of people, the injured ones during the war and the innocent ones that are affected brutally during the time of war. According to the International Committee of the Red Cross “International humanitarian law (IHL) is a set of rules that seeks, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not, or are no longer, directly or actively participating in hostilities, and imposes limits on the means and methods of warfare.” The scope of Humanitarian law has always protected those most affected by war, such as injured soldiers, local residents, and captives. However, the complexity of modern war crimes and advanced weaponry has made these protective rules increasingly intricate, challenging traditional classifications of armed forces.
International Humanitarian Law (IHL) applies to two types of situations: international armed conflicts and non-international armed conflicts. The former pertains to all cases of declared wars or conflicts between two or more states, while the latter concerns internal conflicts within a state, where international law does not typically intervene.
This paper will deal with the role of International Humanitarian Law in armed conflicts, whether international or non-international, focuses on core principles related to the conduct of warfare. However, its application faces rising challenges. International organizations play a crucial role in addressing these challenges and ensuring compliance with IHL during armed conflicts.
Research Methodology
This paper is descriptive in nature and relies on secondary sources to conduct an in-depth analysis of the Role of International Humanitarian Law in Armed Conflicts. The research utilizes information from journals and websites.
Review Literature
According to Author Dieter Fleck, throughout history, the international humanitarian law has been developed by the influence of many religious concepts and philosophical ideas, the five golden rules to live by as mentioned in the introduction are the founding piece the development of international humanitarian law, from the initial rule of customary law to the first written humanitarian principles for conducting war, faced some setbacks.
The laws governing warfare have a lengthy history. From the Middle Ages through the seventeenth century, these discussions were primarily theological, with philosophical influences. It wasn’t until the nineteenth century that these laws began to be codified. The Babylonian King Hammurabi authored the “Code of Hammurabi,” which included provisions to protect the vulnerable from their oppressors and mandated the release of hostages upon payment of ransom.
The Greeks considered each other as equals and as a prime principle of their war treated the war victims with respect and dignity. In Islam, the first Calif, Abu Bakr stipulated that their victory shall not be because of the blood shed by women, children and old people. St. Augustine in the Middle Ages, governed the war with strict rules of not harming and protecting women, children and the aged from hostilities.
In the savagery of warfare in the late sixteenth century and the early seventeenth century, the brutality was summed by Jurisprudence Author, Hugo Grotius in the following words “ I saw prevailing throughout the Christian world a licence in making war of which even barbarous nations should be ashamed; men resorting to arms for trivial or for no reason at all, and when arms were once taken up no reverence left for divine or human law, exactly as if a single edict had released a madness driving men to all kinds of crime.”. After the effect of the breakdown of both ‘jus ad bellum’ of the Middle Ages and ‘jus in bello’ After Grotius there were many other jurists that wrote upon the criminalities during the time of war.
Development of International Humanitarian Law
The development of International Humanitarian Law began in the mid-19th century, spurred by the Battle of Solferino in 1859, which was the first major international humanitarian conflict on record. Henry Dunant, a Swiss businessman, and Guillaume-Henri Dufour, a Swiss army officer, were deeply moved by the horrors they witnessed. Upon returning to Geneva, Dunant recounted his experiences in his book “A Memory of Solferino,” published in 1862. In 1863, along with Gustave Moynier, Louis Appia, and Théodore Maunoir, Dunant and Dufour founded the ‘Committee of Five,’ an international organization dedicated to assisting wounded soldiers. This group was later renamed the International Committee of the Red Cross in 1876.
The Swiss government in 1864 convened a diplomatic conference which was joined by 16 states and considered the law of wars and the soldiers injured in the army, this gave birth to the modern International Humanitarian Law. These sixteen nations came together to form the 10 articles specifying humanitarian societies, negotiated a convention with ten articles specifying the following: –
- Ambulances, military hospitals, and their staff must be acknowledged as neutral and shielded from harm during conflicts.
- Civilians aiding the injured should be protected.
- Both sides in a conflict are responsible for gathering and tending to wounded or sick combatants.
- The red cross on a white background, symbolizing the Swiss flag in reverse to honor its origins, will be used as a protective emblem for medical personnel, equipment, and facilities.
This set of principles became known as the Geneva Convention of 1864 and laid the foundation for modern International Humanitarian Law. Today, it consists of four conventions that collectively represent contemporary efforts to protect innocent individuals during armed conflicts.
Core Principles of International Humanitarian Law
There are five main and core principles that are present for the International Humanitarian Law which it is governed by, these principles are: –
- The distinction between civilians and combats
- The prohibition on attacking against those who are not actively involved in hostilities i.e. Hors de combat
- To not cause unnecessary suffering
- To follow the principle of necessity
- The principle of proportionality
These principles are the laws that provide a distinguish between the population and the combats. Under the principle of distinction, all parties involved in an armed conflict must differentiate between combatants and civilians. Combatants are required to make themselves identifiable to their enemies, while civilians, who are not participating in the hostilities, must not be targeted or directly involved in the fighting.
The International Humanitarian Law mandates that humanitarian actors engaged in conflict must be respected and protected. Armed forces are required to shield civilian humanitarian workers from harassment, intimidation, arbitrary detention, and other forms of mental trauma. Ensuring the protection of these actors is essential for delivering vital care.
According to the law of state responsibility, the state of necessity refers to circumstances that justify an otherwise wrongful international act. Article 25 of the International Law Commission’s Articles on State Responsibility permits a state to claim necessity when it is the sole way to safeguard an essential interest from a serious and immediate violation of international law.
The Principle of Proportionality prohibits attacks that are expected to cause excessive civilian casualties or damage relative to the anticipated military advantage. This principle aims to limit the harm caused by military operations by ensuring that the means and methods of warfare are proportionate to the objectives.
The Implementation and Enforcement of International Humanitarian Law in Armed Forces
The international Humanitarian Law is designed to regulate the conduct during armed conflicts between two or more conflicting parties and in the process protect those who are not participating in the hostilities and protect the Human Rights of such people.
Comprehensive training broadens protection in armed conflicts, ensuring systematic application of humanitarian rules. Training covers humane treatment of detainees and principles like precautions, distinction, and proportionality in attacks.
Armed forces must have systems in place for disciplining personnel who violate IHL. This includes courts-martial and other military justice processes to hold individuals accountable for war crimes and other breaches. States and their armed forces should cooperate with international organizations and tribunals that oversee the enforcement of IHL, such as the International Criminal Court (ICC).
The challenges faced by the implementation of International Humanitarian Law (IHL) are numerous and varied. Some are longstanding, others are new, and many are interconnected, while some are distinct. Over the years, the nature of these challenges has evolved across different contexts. From its inception, IHL has encountered various types of issues. Early problems stemmed from a lack of substantive and procedural rules for implementation.
Challenges in the application of International Humanitarian Law
Examining the newly established Humanitarian Law reveals several challenges in its implementation, mainly due to the classification, declassification, and overclassification of armed conflicts, which create inherent issues and gaps within the framework of International Humanitarian Law (IHL). Recent developments in military tactics, the participation of armed forces in multinational operations, and the involvement of non-state actors, especially in scenarios where UN third-party interventions support one side of a conflict, have significantly complicated the application of IHL.
Interestingly, the Geneva Conventions of 1949 do not explicitly define “armed conflicts” or distinguish between “armed conflicts of international and non-international character.” Nonetheless, the language in Common Articles 2 and 3 of all four Geneva Conventions broadly addresses both types of conflicts.
The increasing number and diversity of armed groups, along with their varied operational methods, are making it progressively difficult for humanitarian organizations to work safely and effectively engage with non-state armed groups regarding IHL compliance. Additionally, the evolving tactics of these groups present numerous legal challenges, such as determining how IHL applies to situations involving multiple armed factions and understanding the level of protection IHL and other international laws provide to those affected by armed conflict.
With the rise of urban warfare and new technologies in modern conflicts, including cyber operations that act as anonymous and autonomous weapons to monitor conflict zones from space, the protection of civilians is becoming more complex. These developments are significantly impacting contemporary International Humanitarian Law.
Cases where International Humanitarian Law has played part to challenge the Armed Forces
There have been many cases that have involved IHL as their saviour and to free themselves from the hostile situation they were put in because of the conflicts between two states, there are several cases but we will be talking about the ones that made an impact on the society and changed the course of the future of war crimes.
International Humanitarian Law in the Yugoslav Wars
Overview: – The first case is about the violence in Yugoslavia, where a series of ethnically-based conflicts fought from 1991 to 2001, followed the breakup of the Socialist Federal Republic of Yugoslavia experienced wars involving Croatia, Bosnia and Herzegovina, Serbia, Montenegro, Slovenia, and Kosovo. These conflicts were characterized by severe human rights violations, such as ethnic cleansing, genocide, and numerous breaches of International Humanitarian Law.
International Humanitarian Law Issues in the War
Widespread campaigns of ethical cleansing were conducted particularly in Bosnia and Herzegovina, Bosnian Serb forces targeted Bosniak (Bosnian Muslim) and Croat populations through campaigns involving mass expulsions, killings, and the destruction of homes and cultural sites. These actions resulted in the forced displacement of thousands of people and subjected them to severe atrocities, significantly altering the demographic conditions of the region.
IHL Response and Accountability
In order to manage the situation in Yugoslavia, there was an establishment of the ‘International Criminal Tribunal for the Former Yugoslavia’ (ICTY) in 1993. This establishment was formed to prosecute serious crimes committed during the war and give the suffering of the people some justice. This Tribunal led 161 individuals being indicted, which included high ranking military officers and political leader for conviction of numerous genocides, war crimes and crime against humanity. Notable convictions included Radovan Karadžić and Ratko Mladić for their roles in the Srebrenica massacre and other atrocities.
In a landmark Judgement of the International Criminal Tribunal for the former Yugoslavia convicted a commander who deliberately instilled fear among a city’s residents with the intent to drive them out and make the area “safe for future generations” of his family, finding him guilty of war crimes. Similarly, in the digital realm, such acts of spreading fear and terror are also prohibited.
Another such example of such war crimes is the ongoing Israel Palestine War.
International Humanitarian Law in Israel Palestine War
Overview: – The Israeli-Palestinian conflict traces its origins to the late 19th century. In 1947, the United Nations proposed Resolution 181, recommending the partition of the British Mandate of Palestine into separate Jewish and Arab states. On May 14, 1948, Israel declared its independence, sparking the first Arab-Israeli War, which resulted in Israel’s victory and the displacement of around 750,000 Palestinians. This division led to the creation of Israel, the West Bank, and the Gaza Strip.
Subsequent conflicts with Egypt, Jordan, and Syria led to significant events like the 1956 Suez Crisis and the 1967 Six-Day War, during which Israel expanded its territorial control. The 1973 Yom Kippur War saw Egypt and Syria launching an attack on Israel to reclaim lost territories, resulting in further negotiations but no major territorial changes.
The 1979 Camp David Accords led to a peace treaty between Egypt and Israel, although the issue of Palestinian self-determination remained unresolved. The first intifada (1987-1993) was a Palestinian uprising against Israeli control in the West Bank and Gaza. The Oslo Accords (1993 and 1995) initiated a peace process and established the Palestinian Authority, granting limited self-governance to Palestinians. However, unresolved issues and rising tensions led to the outbreak of the second intifada (2000-2005).After Hamas won the 2006 parliamentary elections, internal Palestinian conflict between Fatah and Hamas escalated, leading to violent clashes and Hamas taking control of Gaza. Under the current Israeli government led by Benjamin Netanyahu, policies favoring settlement expansion have drawn significant criticism both domestically and internationally. The conflict persists, marked by ongoing tensions and deep-rooted historical, political, and territorial disputes.
International Humanitarian Law Issues in the War
The targeting of civilians from both the Israeli military operations and the Palestinian armed groups have been accused of failing to distinguish between military and civilian area which leads to an impact of causalities being in a significant number from both the sides. With Palestinian armed groups using rocket attacks into Israeli territory and the Israeli troop blocking the Gaza strip, the impact is on the civilians filling the areas with death and psychological trauma and no food or essential goods for the Palestinian people leading to an economic hardship
Also, with the Israeli’s establishing settlement in the west bank, causes a violation of the fourth Geneva Convention which prohibits an occupying power from transferring its own civilians into a territory that it occupies.
IHL Response and Accountability
The UN, through agencies like the UN Relief and Works Agency (UNRWA) and the Office of the High Commissioner for Huaman Rights (OHCHR) they monitor the violations and sends reports to the UN, which has been passing resolutions for the protection of civilians and to put an end to the hostilities. The International Criminal Court has also been investigation into the war crimes but the lack of cooperation from both the sides is leading up challenges to form a verdict
Suggestions
Enhancing training and education for armed forces and government officials on International Humanitarian Law (IHL) is crucial for better understanding and application. Collaboration among international bodies like the United Nations, International Committee of the Red Cross (ICRC), and NGOs is essential to effectively monitor, implement, and enforce IHL standards. Sharing resources and intelligence can enhance operational effectiveness in conflict zones. It’s also vital to develop and implement protocols for emerging warfare technologies, such as cyber warfare and unmanned systems, ensuring they adhere to IHL principles to minimize harm to civilians and non-combatants during military operations.
Conclusion
In Conclusion, International Humanitarian Law is vital in reducing the horrors of war and safeguarding human rights during armed conflicts. Although its principles are well-established, the evolving nature of warfare and global politics presents significant challenges to its implementation. Historical and ongoing conflicts, such as those in Yugoslavia and Israel-Palestine, highlight the complexities involved and the need for international mechanisms to enforce IHL. Moving forward, enhanced training, international cooperation, technological adaptation, legal reforms, stronger accountability, and secured humanitarian access are essential to uphold the humanitarian standards set by IHL. By addressing these measures, the international community can better protect innocent lives and ensure that the laws of war evolve to meet modern challenges.
NAME – HARSHPREET KAUR TOURA
COLLEGE NAME – VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES