International humanitarian law / the law of nations
International Humanitarian Law (IHL) forms a major part of public inernational law and comprises the rules which, in times of armed conflict, seek to protect people who are not or are no longer taking part in the hostilities, and to restrict the methods and means of warfare employed. More precisely, what the International Committee of the Red Cross means by international humanitarian law applicable in armed conflicts is international treaty or customary rules which are specially intended to resolve matters of humaintarian concern arising directly from armed conflcits, whether of an international or non-international nature; for humanitarian reasons those rules restrict the right of the parties to a conflict to use the methods and means of warfare of their choice, and protect people and property affected or liable to be affected by the conflict.
Geneva and The Hague
International Humanitarian Law (IHL) - also known as the law of armed conflicts or law of war has two branches:
the ‘law of Geneva’, which is designed to safeguard military personnel who are no longer taking part in the fighting and people not actively involved in hostilities, that is, civilians.
the ‘law of The Hague’, which establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the enemy.
The two branches of IHL draw their names from the cities where each was initially codified. With the adoption of the Additional Protocols of 1977, which combine both branches, that distinction is now of merely historical and didactic value.
Who fights whom?
An international armed conflict means fighting between the armed forces of at least two states (it should be noted that wars of national liberation have been classified as international armed conflicts).
A non-international armed conflcit means fighting on the territory of a State between the regular armed forces and identifiable armed groups fighting one another. To be considered a non-international armed conflcit, fighting must reach a certain level of intensity and extend over a certain period of time.
Internal disturbances are characterised by a serious disruption of internal order resulting from acts of violence which nevertheless are not representative of an armed conflict (riots, struggles between factions or against the authorities, for example).
Grotius and the law of nations.
In current parlance, the law of nations is synonymous with the term ‘public international law’, which is the body of rules governing relations between States and between them and other members of the International community.
Grotius, a jurist and diplomat, was the father of the law of nations. Following the reformation, which divided the christian church in Europe, he took the view that the law was no longer an expression of divine justice but the fruit of human reason and that it no longer preceded action but arose from it. Hence the need to find another uniting principle for international relations. The law of nations was to provide that principle. In his ”De jure belli ac pacis”, Grotius listed rules which are among the firmest foundations of the law of war.
Terminology.
The expressions international humanitarian law, law of armed conflicts and law of war may be regarded as equivalents. International organisations, universities and even States will tend to favour international humanitarian law (or humainitarian law), whereas the other two expressions are more commonly used by the armed forces.
International Humanitarian Law.
Refugee Law
Human Rights Law.
Maritime Law.
Laws governing air space.
Laws governing economic relations.
Laws governing international organisations.
Environmental Law.
Laws governing State responsibility.
Laws governing diplomatic relations.
Laws governing the peaceful settlement of conflcits.
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What are the essential rules of International Humanitarian Law?
The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solely against military objectives. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavourable distinction whatever. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.
Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use methods of warfare that are likely to cause unnecessary losses or excessive suffering.
The wounded and sick must must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared. The red cross or the red crescent on a white background is the distinctive sign indicating that such persons and objects must be respected.
Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convicions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guaranees.
Fundamental Principles of Humanitarian Law:
Like Grotius, jurists and philosophers took an interest in the regulation of conflicts well before the first Geneva Convention of 1864 was adopted and developed.
In the 18th century, Jean-Jacques Rousseau made a major contribution by formulating the following principle about the development of war between States:
“War is in no way a relationship of man with man but a relationship between States, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (…). Since the object of war is to destroy the enemy state, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimaate to take their lives”.
In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: “(…) civilians and combatants remain under the protection and authority of the principles of international lawderived from established custom, from the principles of humanity and from the dictates of public conscience.”
The above known as the Martin’s clause, was already considered a standard part of customary law when it was incorporated in Article. 1, paragraph. 2, of Additional Protocol I of 1977.
While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of unnecessary suffering, as follows:
“Considering: (…) That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible number of men;
That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable”.
The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction: “(…) the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objecctives”. (Article. 48, Protocol I).
Finally, the underlying principle of proportionality seeks to strike a balance between two diverging interests, one dictated by considerations of military need and the other by requirements of humanity when the rights or prohibitions are not absolute.
What are the origins of International Humanitarian Law?
To answer this question we have to ask other questions.
What law governed armed conflicts prior to the advent of contemporary humanitarian law?
First there were unwritten rules based on customs that regulated armed conflicts. Then bilateral treaties (cartels) drafted in varying degrees of detail gradually came into force. The belligerents sometimes ratified them after the fighting was over. There were also regulations which States issued to their troops. The law then applicable in armed conflicts was thus limited in both time and space in that it was valid for only one battle or specific conflict. The rules also varied depending on the period, place, morals and civilsation.
Who were the pecursors of contemporary humanitarian law?
Two men played an essential role in its creation: Henry Durant and Guillaume-Henri Dufour. Dunant formulated the idea in ‘A Memory of Solferino’, published in 1862. On the strength of his own experience of war, General Dufour lost no time in lending his active moral support, notably by chairing the 1864 Diplomatic Conference.
Dunant:
“On certain special occasions, as, for example, when princes of the military art belonging to different nationalities meet (…) would it not be desirable that they should take advantage of this sort of congress to formulate some international principle, sanctioned by a Convention and inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries?”
Dufour (to Dunant):
“We need to see, through examples as vivid as those you have reported, what the glory of the batlefield produces in terms of torture and tears”.
How did the idea become a reality?
The Swiss government, at the prompting of the five founding members of the ICRC, convened the 1864 Diplomatic Conference, which was attended by 16 States who adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field.
What innovations did that Convention bring about?
The 1864 Geneva Convention laid the foundations for contemporary humanitarian law. It was chiefly characterised by:
standing written rules of universal scope to protect the victims of conflicts;
its multilateral nature, open to all States;
the obligation to extend care without discrimination to wounded and sick military personnel;
respect for and marking of medical personnel, transports and equipment using an emblem (red cross on a white background).
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Humanitarian law prior to its codification
It would be a mistake to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the statrting point of international humanitarian law as we know it today. Just as there is no society of any sort that does not have its own set of rules, so there has never been a war that did not have some vague or precise rules covering the outbreak and end of hostilities, as well as how they are conducted.
“Taken as a whole, the war practices of primitive peoples illustrate various types of international rules of war known at the present time: rules distinguishing types of enemies; rules determining the circumstances, formalities and authority for beginning and ending war; rules describing limitations of persons, time, place and methods of its conduct; and even rules outlawing war altogether”. (Qunicy Wright).
The first laws of war were proclaiimed by major civilisations several millenia before our era: “I establish these laws to prevent the strong from oppressing the weak”. (Hammurabi, King of Babylonia).
Many ancient texts such as the Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the Viqayet - a text written towards the end of the 13th century, at the height of the period in which the Arabs ruled Spain - contains a veritable code for warfare. The 1864 Convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered laws and customs of war protecting the wounded and those caring for them.
The Lieber Code: From the beginninig of warfare to the advent of contemporary humanitarian law, over 500 cartels, codes of conduct, covenants and other texts designed to regulate hostilities have been recorded. They include the Lieber Code, which came into force in April, 1863 and is important in that it marked the first attempt to codify the existing laws and customs of war. Unlike the first Geneva Convention, however, the Code did not have the status of a treaty as it was interested solely for Union soldiers fighting in the American civil war.
WHAT TREATIES MAKE UP INTERNATIONAL HUMANITARIAN LAW?
Initiated in the form of Geneva Convention of 1864, contemporary humanitarian law has evolved in stages, all too often after the events for which they were needed, to meet the ever-growing need for humanitarian aid resulting from developments in weaponry and new types of conflict. The following are the main treaties in chronological order of adoption:
1864: Geneva Convention for the amelioration of the condition of the wounded in armies in the field.
1868: Declaraton of St. Petersberg (prohibiting the use of certain projectiles in wartime).
1899: The Hague Conventions respecting the lows and customs of war on land and the adaptation to maritime warfare of the principles of the 1864 Geneva Convention.
1906: Review and development of the 1864 Geneva Convention.
1907: Review of The Hague Conventions of 1899 and adoption of new Conventions.
1925: Geneva Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare.
1929: Two Geneva Conventions:
Review and development of the 1906 Geneva Convention.
Geneva Convention relating to the treatment of prisoners of war (new).
1949: Four Geneva Conventions:
Amelioration of the condition of the wounded and sick in armed forces in the field.
Amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea.
Treatment of prisoners of war.
Protection of civilian persons in time of war (new).
1954: The Hague Convention for the protection of cultural property in the event of armed conflict.
1972: Convention of the prohibition of the development, production and stockpiling of bacteriological (biological) and toxic weapons and on their destruction.
1977: Two Protocols additional to the four 1949 Geneva Conventions, which strengthen the protection of victims of international (Protocol I) and non-international (Protocol II) armed conflicts.
1980: 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 (CCW), which includes:
the Protocol (I) on non-detectable fragments.
the Protocol (II) on prohibitions or restrictions on the use of mines, booby traps and other devices.
the Protocol (III) on prohibitions or restrictions on the use of incendiary weapons.
1993: Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction.
1995: Protocol relating to blinding laser weapons (Protocol IV [new] to the 1980 Convention).
1996: Revised Protocol on prohibitions or restrictions on the use of mines, booby traps and other devices (Protocol II [revised] to the 1980 Convention).
1997: Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction.
1998: Rome Statute of the International Criminal Court.
1999: Protocol to the 1954 Convention on cultural property.
2000: Optional protocol to the Convention on the rights of the child on the involvement of children in armed conflict.
2001: Amendment to Article I of the CCW.
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