Abstract:
IHL has been seen as a framework regulating armed hostilities and conflicts all across the globe. Contemporary peacebuilding and peacemaking actions have lent their trust to International Humanitarian law or IHL, to frame peace mainly in International Armed conflicts (IAC) & Non-international armed conflicts (NIAC). The research paper delves in the roots of IHL with its focus on several aspects such as the Definition of IHL, History of IHL, Sources of IHL, Role of institutions, Challenges & Solutions, etc. The primary focus of this paper is to elicit the crucial role IHL plays in armed conflicts at the international level. By understanding the basic dynamics of International Humanitarian Law, highlighting & understanding the role it plays in armed conflicts becomes quite easy. Thus, this research paper offers insights into ‘How IHL facilitates an end to armed conflicts, brings & frame accountability, brings stability & and protect international peace from further violation’ in which international states & institutions find themselves as stakeholders in such ‘protection of peace’ and ‘avoidance of any armed conflict’
Keywords
International Humanitarian Law, human rights, conflicts, special agreements, humanness, Jus in Bello, Armed Conflicts, Humanitarian law.
Introduction
With the advent of time, pertaining to last few decades, armed conflicts have seriously impacted the lives of civilians all across the globe. It has brought unspeakable horror, destruction of mass life, suffering in many forms. International Humanitarian Law emerged in response to the immense suffering and desperation experienced by war victims. Defined as ‘IHL is a set of rules that seek to limit the humanitarian consequences of armed conflicts. It is sometimes also referred to as the law of armed conflict or the law of war (jus in bello).’[1] However, acerbic violations ‘Human laws’ have become common in the aspect of armed conflicts. These violations range from basic curtailment of Human rights to Genocide, war crimes, etc.
However, with the past filled up with horrors of such crimes, such time gave rise to the need highlighting to understand the importance of Human rights during such armed conflicts, thus enlightening many governments, politicians, diplomats, and activists especially Human rights activists to refer to IHL in armed conflicts. IHL strives to achieve the goal of preserving dignity and humanity for all. In today’s times, the 1949 Geneva Convention is one of the most accepted treaty across the globe, ratified by several countries. It not only refers to the crucialness of Human rights but also presents a universal authority of humanitarian principles it promotes.
Primary Global Organizations like the International Committee of the Red Cross, United Nations International Red Cross and Red Crescent Movement, United Nations High Commissioner for Refugees, International Institute of Humanitarian Law, etc, aspire towards governing humanitarian law and act as guardians of IHL.
The cornerstone of IHL is the principle of distinction. It is based on the recognition that “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy.[2]
Research Methodology
The paper is analytical. It highlights the importance of humanitarian law during conflicts and analyses the importance it plays. It talks about the challenges & solutions about such human laws during such scenarios. The paper is mainly based upon findings from secondary sources like Articles, Journal & Report
Review of Literature
Defining Armed Conflict in IHL by Gertrude C. Chelimo, VOL. 3 NO. 04, Inquiries journal, 2011
The Article provides a deep insight into the basics of armed conflicts. It serves as a good stepping stone to grab the idea of armed conflict’ explained in detail through its several dynamics such as definition, typology, Challenges about such typology, Importance of such classification, etc. Overall, a good starting point to understand in detail, the basics of Armed conflicts
Dieter Fleck, The handbook of humanitarian law in armed conflicts, 101-149 1201 – 1224, Oxford University Press, 1995
The Book provides a detailed understanding of the relation between Armed conflicts and Human law, covering majorly every aspect of it. The book provides great insight into understanding the basics and advanced dynamics of this topic. Thus, this book serves as one-stop solution in the analysis of the role of IHL in conflicts.
IHL A Comprehensive Introduction, by Nils Melzer, 2016
This article by Nils Melzer is very concise and precisely written. It offers a great understanding of Humanitarian law and armed conflicts to students in less time. Chapters 1,2 & 7 of this article become quite important to understand this topic. Preciseness is a major quality of this book providing a good option to those students who want to understand such topic in less time.
The Law of Armed Conflict: IHL in War by Gary D. Solis, 2006
The book serves as a comprehensive guide to IHL. It has covered the principles, sources, and applications of IHL precisely. Addresses many issues like conduct during hostilities, noncombatant protection, etc. Thus, offers valuable insight & a good resource to those interested in understanding IHL during armed conflicts
Definition:
IHL, applicable during armed conflicts, comprises international rules established by treaty or custom. These rules are specifically designed to address humanitarian challenges arising directly from both international and non-international armed conflicts. They restrict the combatants’ freedom to select their warfare tactics. The term ‘international humanitarian law applicable in armed conflicts’ is commonly shortened to ‘international humanitarian law’ (IHL), or just ‘humanitarian law.’ While the military often uses the terms ‘laws of armed conflicts’ (LOAC) or ‘laws of war,’ these are equivalent to IHL. In essence, International Humanitarian Law (IHL) sets framework of standard which must be followed by in all situation of conflicts.
Sources of International Humanitarian Law
IHL is derived from three primary sources: treaties, customary practices, and general legal principles. Additionally, case law, doctrine, and so-called ‘soft law’ contribute significantly to the interpretation of specific IHL rules.[3]
- Treaty Law
International Humanitarian Law (IHL) is extensively codified within international law. In practical terms, treaties are the most pertinent sources of IHL related to a specific armed conflict. Key sources include the Geneva Conventions, 1949, their first Additional Protocol, and various other treaties like the Convention on Certain Conventional Weapons, 1980.
- Custom Law
Treaty law’s regulations and principles often stem from customary practices, which are widespread state behaviors accepted as legal obligations. This practice solidifies into customary law, existing both in conjunction with and independently from treaty law. Customary law isn’t always older than treaty law; it can evolve post-treaty or at the treaty’s inception. The strength of customary International Humanitarian Law (IHL) lies in its fluid nature, allowing it to evolve swiftly with the changing practices and legal views of States. This flexibility enables it to respond more rapidly to emerging challenges and advancements compared to treaty law, which necessitates international discussions, agreement and ratification of new provisions.
- General Principles of Law
It has no specific definition or any list of laws. It pertains to fundamental legal doctrines acknowledged across mature legal frameworks worldwide. These include the obligation to conduct oneself with sincerity, the right to self-defense, and the principle that criminal laws should not apply retroactively.
The International Court of Justice (ICJ) has frequently established obligations under IHL based on a fundamental legal principle. This principle, referred to as ‘elementary considerations of humanity,’ is deemed to impose even stricter requirements during peacetime than in wartime. ICJ has asserted that the obligation of states under IHL to provide notice of maritime minefields during wartime also applies in peacetime[4]. Additionally, the humanitarian principles outlined in common Article 3 are binding in any armed conflict, regardless of its legal classification and the treaty obligations of the involved parties.[5]
- Soft Law, Case-law & Doctrine
Treaties, customs, and general legal principles are the foundational sources of international law. However, the rules and principles they encompass often necessitate intricate interpretation for practical application. For instance, IHL is explicitly suitable in ‘armed conflict’ scenarios, yet the exact definition of this term requires legal clarification. Additionally, IHL mandates civilian protection against direct attacks unless they engage directly in hostilities. “The determination of whether a civilian has forfeited protection under IHL depends on the interpretation of ‘direct participation in hostilities.’ This interpretation can be carried out by states, international courts, and tribunals such as the International Criminal Court (ICC) and ICJ. Additionally, the teachings of highly qualified legal experts are recognized as a supplementary method for determining the law.[6]
Understanding the sources, helped us to grasp the origin of IHL, however this invokes curiosity upon ‘What is the Scope of Application of International Humanitarian Law?’, Thus Understanding the scope, will automatically explain the role IHL plays, as broader its scope, the more important it will be.
IHL is tailored to oversee the conduct of conflicts. It encompasses comprehensive rules that dictate the conduct of warfare and ensure the safeguarding of individuals and property. does not extend to inter-State confrontations that do not meet the threshold of armed conflict. Similarly, it does not apply to internal disturbances, tensions, riots, isolated acts of violence, or similar incidents that fall short of constituting a conflict[7]. The existence of conflict is crucial for the applicability of IHL, however in the contrasting scenarios, Some of the obligations specified by IHL may be relevant even during peacetime, and certain protections provided by IHL may continue beyond the conclusion of an conflict.
Individuals detained due to an armed conflict are safeguarded under IHL until their release and repatriation, or until their situation has been regularized, which may extend well beyond the conflict’s conclusion. Similarly, IHL continues to apply in regions that are still under occupation after active fighting has ceased until a political resolution regarding their status is reached.
IHL treaties differentiate between two categories of armed conflict: (a) International conflicts, which involve two or more States, and (b) non-international armed conflicts, occurring between States and non-governmental armed groups or solely among such groups.[8]. Thus, International Armed conflict, mainly is determined by these 3 factors-
- Treaty law – Traditional armed conflict is typically international, involving two or more nations. Presently, the rules of IHL for these conflicts are mainly enshrined in the 1907 Hague Regulations, Geneva Conventions of 1949 and Additional Protocol I.
- Legal Status of belligerent parties – Armed conflicts are classified as international when they take place between States that are signatories to the 1949 Geneva Conventions. Clashes involving entities that are neither States nor recognized national liberation movements don’t qualify as IAC; instead, they are categorized as NIAC or different types of violent situations.
- Nature of Armed Conflict – The traditional laws of war are more limited than IHL because they only apply during an official state of war between nations. In contrast, IHL sets forth universal humanitarian standards that apply in any situation of conflict, irrespective of whether a formal state of war is declared. The activation of IHL is not initiated by mere mistakes or accidental harm nor by acts of aggressive actions by individuals without official support of state they represent. Even small instances of armed violence, like -individual border incidents, the capture of a single prisoner, or official state support, can be enough for IHL to apply.
Also, Temporal & Territorial scope of application of such laws plays a crucial role, as:
- Temporal Scope: The duration of an IAC t is different from the period during which IHL rules are in effect. Even after a conflict has concluded, many IHL provisions may still be operative. For example, individuals who are detained are protected under IHL until they are released and repatriated, or until their circumstances have been duly regularized. Also, soldiers who have taken part in such armed conflicts are still responsible for humanitarian actions such as reuniting families, accounting for deceased and missing persons, and other related efforts. Thus, such rules don’t extinguish the purpose of IHL once the conflict ceases to exist.
- Territorial Scope: It provides for the extension of such human laws beyond the affected region, i.e. to that region that might have a nexus to that conflict. Such an Extension of protection aimed to clear that the applicability of IHL isn’t limited to those areas where the nexus of conflict is. The population of those regions that might be remotely affected is also protected.
For the effective enforceability of IHL, proper actors must have the authority to keep human laws and rights protected. Therefore, Institutions like State, Peacekeeping Institutions & peacekeeping operations, and non-state actors employ such protection, thus increasing the importance of IHL during such conflict. This aspect of Crucialness comes from the nature of such actors itself.
- State – The state that has ratified the International Human Rights Convention becomes bound by the provisions of such convention to uphold human laws. Under the Vienna Convention on the Law of Treaties, States that have signed but not ratified a treaty are obligated to act in good faith and refrain from undermining its intended objectives and purpose. The Geneva Conventions require countries and their military forces to follow certain rules during war. They also say that the soldiers and their leaders can be held responsible if they break these rules. Additionally, international laws of war tell countries they must follow these rules and ensure that civilians and other people and property that should not be harmed are protected. States have obligations under International Humanitarian Law (IHL) that encompass investigating alleged violations of both international human rights and humanitarian law. Additionally, they are responsible for prosecuting and punishing those found responsible for such violations. Also, any delegation made by the state doesn’t make such a duty to cease to exist.
- Peacekeeping & peace enforcement operations – TheUnited Nations, as a peacekeeping institute plays a crucial role in upholding humanitarian law through[9]:
- Monitoring and reporting of conflicts
- Diplomatic Efforts to comply with IHL, like adopting any resolution.
- Application of Legal framework like the charter of UN which enshrines the concept of ‘Jus ad Bellum’.
- Peacekeeping Missions that protect civilians.
- Providence of Humanitarian Assistance within the Human rights Framework.
- Non-state Actors – With advent of time, the UNSC has observed that international Humanitarian law also binds Nonstate actors and must pay obligation to such rules. Individuals could also be responsible in case of extreme human rights & law violations at the international level, therefore, institutions like the UNSC bring a framework to also regulate such violations, upholding International Humanitarian Law.
As the major means of providing such protection are discussed, it elicits the question ‘In what way the protection is offered & specifically to whom?’
Answering the same, it can be said that protection is offered to all persons whether a Civilian, Combatant, or fighter. Though the level of protection depends on the status or behavior of persons, their nationality, and the specific circumstances they are in[10].
When a combatant is captured by an enemy country, they are provided with Prisoner of War Status thus preventing them from inhumane forms of punishment however can be held captive until the end of the conflict. Civilians, who aren’t taking part in conflict are offered protection under their Civilian Status. They are rehabilitated to a safe location & also any gross violation of their right is strictly dealt with in the court of law. Special Protection is offered to Women and Children during such conflict. International Humanitarian Law (IHL) protects both civilians and combatants. There are four distinct categories of protected persons: the wounded and sick, the wounded, sick, and shipwrecked, prisoners of war, and civilians in occupied territory or within the enemy’s territory[11] Those persons who have been captured by adversaries are granted the status of Protected Persons[12]. The Basic Principles concerning the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law [13] provides specifically for which in essence can be understood as:
- Judicial Remedies including access to claims for damages, to legal processes & with proper means to have this recourse.
- They must be able to avail this recourse through those legal channels recognized internationally and through administrative avenues
- They must be provided with damages to their property, costs to cover their medical and psychological care, and assurances to prevent any further gross violation.
Role of a Few Major Organizations working at International level and Non-governmental Organizations in the protection of IHL:
- United Nations – Article 1.3 of the UN Charter provides for ‘promoting and encouraging respect for human rights and fundamental freedoms for all without discrimination is one of the fundamental purposes of the Organization’. With time, UN has seen a vertical extension with several new organizations formed under it with different aims but with the common goal of protecting human laws. These organs are:
- UN General Assembly – Played a crucial role in shaping human rights law. The ‘Universal Declaration of Human Rights’ has been one of the major contributions. The General Assembly has established comprehensive standards regarding the detention, arrest, extradition, and punishment of individuals found guilty of war crimes and crimes against humanity through the adoption of General Assembly Resolution 3074 (XXVIII)[14]. Also, resolution 2675 (XXV) provided that Basic Human Rights will continue to apply in situations of conflict as well. Therefore, thriving on such peace-liking ideology & understanding the ‘Humanness’, many more resolutions have been adopted and incorporated into global humanitarian law dynamics
- UN Security Council – UNSC has been adequately responsive to the protection of human laws in difficult times. In 1967 only, it was reflected that ‘that essential and inalienable human rights should be respected even during the vicissitudes of war’[15]. Further resolutions like 1265, 1894, 1612, 1888, etc have furthered this process of protection of human laws, thus reflecting its significance
Apart from these 2, Organ like –
- Human Rights Council, 2006
- The Office of the United Nations High Commissioner for Human Rights, 1993
- Human Rights Committee
- United Nations Office for the Coordination of Humanitarian Affairs (OCHA), 1991
- ‘Peacekeeping Operations’ by the UN, have provided new dynamics to Human law, & formation of these bodies has increased the UN’s significance in global affairs.
- International Committee of Red Cross– Is a non-governmental organization formed in 1863. During conflicts, it helps to provide humanitarian aid for vulnerable people like food, medicines, medical equipment, etc. It is bolstered by the Geneva Convention.
Challenges:
ICRC in 2019 made a report regarding the challenges IHL faces[16]. These are:
- Usage of New technologies in warfare like autonomous weapon systems, AI, and Web-based operations have become a new threat to civilian infrastructure.
- Fulfilment of continuous Civilian basic needs during the conflict period
- Urbanization of warfare poses a severe threat to large populations & infrastructure at large.
- The malign effect on climate from such conflict also poses many challenges for all the relevant actors to deal with.
Suggestion & Conclusion:
With the changing history, IHL reached new heights. From being extremely curtailed, to being u significantly protected during wartime, it has gone through a mammoth change. Conventions like the Geneva Convention of 1949 have changed the way IHL has been. It regulated the framework of IHL and imposed responsibility upon the state to look after human laws & rights and also to prevent any further gross violation. Though with time IHL has faced serious challenges, the State, along with Institutions and other Non-state actors should work to counter such challenges by using the power of law it has been granted by relevant statutes. They should aspire for more accountability of parties of the conflict, increased human welfare measures, Easy access to fair, speedy justice, reparation of damages to victims, reducing the extremist ideology in contemporary times, increased respect for human laws with severe sanctions for their violations, etc. With institutions such as UN, ICRC, and Amnesty International the IHL is somewhere more or less safe. The increased judicial actions by ICJ, International Criminal Court, and Nations human courts have nurtured faith in such lawful institutions. Therefore, the paramount importance IHL plays during armed conflict is recognized globally. Every Person shall strive for the protection of human laws at any level keeping intact humanness alive even in today’s agitated times.
Author
Jyotirmay Shrivastava
St. Xavier’s University, Kolkata
[1] https://www.jep.gov.co/Sala-de-Prensa/Documents/4231_002-IHL_WEB_13.pdf
[2] St. Petersburg Declaration, Preamble.
[3] https://www.jep.gov.co/Sala-de-Prensa/Documents/4231_002-IHL_WEB_13.pdf
[4] ICJ, Corfu Channel case (United Kingdom v. Albania), Judgement, 9 April 1949, ICJ Reports, 1949, p.22
[5] ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Nicaragua case), Judgment (Merits), 27 June 1986, para. 2
[6] ICJ Statute, Art. 38
[7] AP II, Art. 1(2).
[8] https://www.jep.gov.co/Sala-de-Prensa/Documents/4231_002-IHL_WEB_13.pdf
[9] For detailed Information, refer to https://news.un.org/en/story/2023/10/1142582 , https://news.un.org/en/story/2023/10/1142582
[10] https://www.diakonia.se/ihl/resources/international-humanitarian-law/who-is-protected-by-ihl/
[11] https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-protection-women-and-children-emergency-and-armed#:~:text=Women%20and%20children%20belonging%20to%20the%20civilian%20population%20and%20finding,food%2C%20medical%20aid%20or%20other
[12] https://www.diakonia.se/ihl/resources/international-humanitarian-law/who-is-protected-by-ihl/
[13] https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation
[14]https://undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F3074(XXVIII)&Language=E&DeviceType=Desktop&LangRequested=False
[15] UNSC Resolution 237 (1967)
[16] https://www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts