An Outline of International Humanitarian Law

Armand-Dumaresq (1964). The signing of the Geneva Convention [painting]

International Humanitarian Law is a branch of international law, focused solely on regulating the behaviour and actions of combatants as well as the means and methods they use to achieve their objectives (ICRC, 2004). Alternatively named the law of war, its purpose is simple, i.e. to limit the use of violence and suffering inflicted, and to protect the lives of people that are not directly involved in the conflict but are affected by it. Its implementation in practice, however, has proven to be much more complex. IHL is mostly contained in the Geneva Conventions, which were signed in 1949, and their Additional Protocols of 1977. The Conventions protect those who are not combatants, meaning the citizens, medical aid personnel, and aid workers, and those who cannot fight anymore, i. e. the injured or detained. Protection implies that their physical and mental health must be respected at all times, as is stated in all the Geneva Conventions. IHL applies to all parties involved in the conflict, regardless of who began the attack.

There are four Geneva Conventions, the first protecting the wounded and sick soldiers on land, while the second protects the wounded, sick and shipwrecked military personnel at sea. The third Convention contains provisions for the protection of prisoners of war, while civilians, even those in occupied territories, are protected by the fourth Geneva Convention. The Additional Protocols reinforce the protection of non-combatant victims in international conflicts (Protocol I) and non-international conflicts (Protocol II). All persons captured by enemies must be cared for: murder, mutilation, torture, cruel, humiliating, while degrading treatment, the taking of hostages, and unfair trial are prohibited in an absolute manner (ICRC, 2014).

The diplomatic conference for the revision of the Geneva Conventions held in Switzerland (1949, August 12). Photo copyright: ICRC Archives/J. Cadoux [photo]

Protocol I contains provisions that are singularly applicable in times of international conflicts, while Protocol II is applicable in non-international armed conflicts. Their existence alludes to the fact that conflicts have historically been distinguished as international and non-international. International armed conflicts are usually disputes between two or more sovereign states. When a nation sends troops in another state to support a local group's use of force, it is similarly considered an international conflict. Cases of colonial occupation or racist regimes, where people are fighting against a dictator and are exercising their right of self-determination, are also regulated by Protocol I. (GCs common Art 2(1)(2)). Non-international armed conflicts take place within a single state, either between a government and an armed group or between armed groups. In order to be characterized as such, high levels of violence and organization should be demonstrated by all parties. Otherwise, they will be deemed as internal disturbances and tensions (GC common Article 3, APII Art 1). Common Article 3, an article present in all Geneva Conventions, focuses on conflicts of intra-state nature, that have been more frequent to arise in the last few decades. It contains all the essential rules of all Geneva Conventions and makes them relevant to internal armed conflicts.

International humanitarian law also governs the choice of weapons and military tactics, and prohibits or restricts the use of certain weapons with a few disarmament treaties. Biological and toxin weapons are banned (Biological Weapons Convention,1972). Conventional weapons that would cause indiscriminate, unjustifiable, and unnecessary suffering and harm are also banned and in some cases restricted under specific terms (Convention on Certain Conventional Weapons, 1980). Chemical weapons which are able to produce mass destruction were banned in 1993 with the Chemical Weapons Convention. Anti-personnel landmines are also prohibited under the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (1997) which was adopted in by 150 UN Members. Concerning nuclear weapons, it is prohibited to "develop, test, produce, acquire, possess, stockpile, use or threaten to use" them, according to the UN Treaty on the Prohibition of Nuclear Weapons that came into effect in January of 2021. Attacks against cultural property are similarly not allowed by the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.

Signing Ceremony of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction,

United Nations Educational, Scientific and Cultural Organization (1993) Headquarters, Paris. [photo]

IHL is based on a few important principles that are popularly referred to as the five rules of war, established as customary law (GSDRC, 2015). The idea of distinction requires combatants to always separate the military targets from the civilians and only attack the former. The dual principle of necessity and proportionality refers to the amount of force that is necessary to defeat the enemy or the objective: no amount higher than that is allowed. The concept of humane treatment protects the mental and physical capacity of civilians and wounded persons. The principle of non-discrimination bans any type of differentiated treatment to persons based on sex, religion, political opinion, or race. Only women and children will receive positive special treatment, which entails the protection of their lives. Sexual violence and the involvement in battles of persons under the age of 18 are strongly prohibited.

Implementing those rules has proven to be quite difficult. The International Committee of the Red Cross acts as a guardian to the laws, constantly tracking the advancement of warfare while being an active participant in UN talks when it comes to potential violations of rules. A state that has violated International Humanitarian Law must provide full reparation of the damage it has caused and the Security Council will compel said state to do so, according to Rule 150 on Reparation of Customary International Humanitarian Law (ICRC, 2005). States and International Courts are those authorized to investigate and prosecute war crimes. There is no single treaty that focuses on War Crimes but a definition by the International Criminal Court identifies them as grave violations of the Geneva Conventions, which means that technically not all violations are crimes (UN Rome Statute of the International Criminal Court, 2001).

Shannon Stapleton/Reuters. Members of the Security Council seat during a meeting at the UN headquarters in New York. [photo]

It is crucial to remark that war is, in fact, prohibited by the United Nations Charter, where it is stated that no one of the 193 Member States can use or threaten to use armed force against the territory or the independence of any other state (U.N. Charter art. 2, para. 4). The Charter is the founding Treaty of the United Nations, signed in 1945, and it deals with jus ad bellum, meaning the conditions that justify the transition from peace to armed force. This, however, is not part of IHL. Humanitarian law is relevant and in effect when a conflict does occur, from the beginning to the end: it does not permit or prohibit the actual conflict in itself. Another distinction that needs to be made is that Humanitarian Law and the law of human rights are not one and the same, and cannot be used interchangeably. The laws for human rights are in effect in times of peace and war, though some of their provisions may be suspended in warfare. International Humanitarian Law, on the other hand, protects fundamental rights and human lives only in times of war.

The UN Charter dictates that only the Security Council or the General Assembly of the UN can authorize 'warlike measures', unless a Nation is attacked where, in that case, it is allowed to defend itself (Britannica, 2016). The Security Council, comprised of 15 Members, is the designated body tasked to maintain peace and security. When there are active threats to peace, breaches of peace, or signs of aggression, it urges the conflict's settlement and decides whether or not and how to deploy a UN peacekeeping operation (U.N. Charter art. 39). All Members are obliged to conform with the Security Council's decisions and resolutions (U.N. Charter art. 25). If the Security Council is unable to act on a matter of conflict - which can happen when one of the five permanent members of the SC casts a negative 'veto' vote on a particular operation - then it is the General Assembly's responsibility to act in its place (Peacekeeping UN, nd). China, France, the Russian Federation, the United States, and the United Kingdom only preserve that right to veto.

International Law is the tool that the partnership of the United Nations uses to instill peace, security, growth, and human dignity. The Organization of the United Nations was assembled in an effort to sustain peace and never go back into warfare. However, their goal was not achieved. The evolution of technology, the frequency and urbanization of armed conflicts, and the use of explosive weapons in populated areas, pose new challenges to the implementation of International Humanitarian Law. The mutation of the international legal system, alongside the evolution of humankind, is critical for mitigating destructive conflicts of any kind.

References

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Image Sources

• Image 1. Armand-Dumaresq. (1864). The Signing of the Geneva Convention [Painting]. https://www.redcross.org.uk/stories/our-movement/our-history/more-than-70-years-of-the-geneva-convention

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• Image 4. Shannon Stapleton/Reuters, found in Staff, C. (2021, August 13). The UN Security Council. Council on Foreign Relations. Retrieved March 4, 2022, from https://www.cfr.org/backgrounder/un-security-council