What Is International Humanitarian Law?
A very important question regarding issues of international law, and also human rights, is that of: “What is International Humanitarian Law?” In this article, we shall answer the discuss international humanitarian law in international relations, examining both the history of international humanitarian law, as well as current iterations of international humanitarian law. We will discuss the various rules of international humanitarian law, and key international treaties on laws related to war. As we shall see, not only is IHL is a very important element of international relations, but there is also a clear relationship between international humanitarian law and human rights.
The Definition of International Humanitarian Law
International Humanitarian Law is understood as the rules laid out explaining what can and cannot be allowed during domestic and/or international conflict. So, the idea of international human rights law is to minimize any and all impact that conflict has on a person, a group, and a society. More specifically, international humanitarian law “protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict” (ICRC, 2004). It is for this reason that the term “international humanitarian law” is quite similar to other terms which include “laws of war,” or “laws of armed conflict” (ICRC, 2015). International humanitarian law is also referred to as jus in bello (latin for the law of war) (Policastri & Stone, 2013).
To further answer the question “What is International Humanitarian Law,” one must understand that unfortunately, many human rights violations take place during times of conflict. Among them are attacks on non-combatants, that is, those not fighting in the conflict.
This point about civilians is one of the foundations of international humanitarian law. Civilians, or civilian populations are not to be threatened or harmed in any way whatsoever. Therefore, those who are fighting in war are to refrain from any attacks on civilians, and also are prohibited from using any weapon(s) that can harm civilians, whether it is because the weapon indiscriminately attacks fighters and non-fighters, or if the use of weapons “that are likely to cause superfluous injury or unnecessary suffering” (ICRC, 2015).
Again, the idea of international humanitarian law is to protect those who are not fighting. However, IHL also includes those fighters who are captured; “it is forbidden to kill or wound an enemy who surrenders or is unable to fight; the sick and wounded must be collected and cared for by the party in whose power they find themselves. Medical personnel, supplies, hospitals and ambulances must all be protected” (ICRC, 2004). Furthermore, international humanitarian law also deals with humanitarian assistance, and discusses how individuals have the right to humanitarian aid based only on need; there should be no other motivations (political, economic, etc…) for providing humanitarian aid (Mackintosh, 2000).
The History of International Humanitarian Law
There is a great amount of international law that covers law of conflict. The first Geneva Conventions were established in 1864, and called for respect and aid to those caught in conflict. This was known as the “Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field” (UN Inter-Agency Standing Committee Task Force on Humanitarian Action and Human Rights, 2004). Then, “In 1868, a new draft convention was drawn up with the idea of extending the principles adopted four years earlier to maritime conflicts. In another move, the St. Petersburg Declaration of 1868 called on States not to use arms which cause unnecessary suffering. The Declaration prohibited the use of explosive bullets” (OHCHR, 1991). However, the turn of the century would usher in additional international humanitarian law.
One of the first documents setting out specific clarifications about activities during war in the 20th century is the Hague Convention of 1907 (Haider, 2013). It was during this time that “The Peace Conferences at The Hague in 1899 and 1907 adopted conventions defining the laws and customs of warfare and declarations forbidding certain practices, including the bombardment of undefended towns, the use of poisonous gases and soft-nosed bullets. The conferences failed to agree on a system of compulsory arbitration as a means of settling disputes which threaten peace” (OHCHR, 1991).
Then, decades later, one of the cornerstones of international humanitarian law is the Geneva Conventions of 1949. The new Geneva Conventions were created to encapsulate the various issues that state and non-state actors wanted to address with regards to international humanitarian law. So, the “new Geneva Conventions were drawn up covering, respectively, the sick and wounded on land (First Convention), wounded, sick and shipwrecked members of the armed forces at sea (Second Convention), prisoners of war (Third Convention), and civilian victims (Fourth Convention). These Conventions were adopted at an international diplomatic conference held in Geneva from April to August, 1949” (OHCHR, 1991).
For example, What is important to note is that “Nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts” (ICRC, 2004). As it has been noted, “IHL is applicable to humanitarian assistance and protection of civilians and is based on the 1949 Fourth Geneva Convention relative to the Protection of Civilians in Time of War and the 1977 Additional Protocols. The Fourth Convention sets out the humanitarian obligations of states in international armed conflict in relation to evacuation of or access to besieged or encircled areas (article 17) and the obligations of the parties to allow free passage of medical supplies, as well as of certain goods to groups of beneficiaries (article 23). It also establishes the rights of non-citizens in the territory of a party involved in the conflict, including rights to individual and collective relief (article 38), and prescribes the obligations of an occupying power as regards relief schemes for the benefit of the population of an occupied territory (articles 59-62)” (European Commission, 2015). It is the fourth Geneva Convention that gets the most attention regarding international humanitarian law, given that the convention focuses on civilians (Haider, 2013).
While the Geneva Conventions and the Protocols are largely supported in international relations, the earlier conventions have much more states who have ratified the laws than the later protocols (Policastri & Stone, 2013).
However, international humanitarian law is not limited to the Geneva Conventions; additional conventions and protocols have been added to further expand the range of issues regarding the full protection of all those possibly affected by conflict. So, for example, in 1954, the international community passed the “Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols.” Then, in 1972 the Biological Weapons Convention was passed, in 1980, “the Conventional Weapons Convention and its five protocols” was passed, in 1993, the Chemical Weapons convention was passed. In 1997, a convention against the use of land mines was passed. Then, in the year 2000, the “…Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict” (ICRC, 2004).
((see IRCG, 2005) for a set of treaties related to international humanitarian law).
International Humanitarian Law and Types of Conflicts
Chelimo (2011) points out that international humanitarian law addressed three categories of conflicts: “international armed conflict, internationalized armed conflict, and non-international armed conflict.” The first, international armed conflict is conflict occurring between two states. The second, internationalized armed conflict, differs from the state to state conflict. Here, “The situation of an internationalized armed conflict can occur when a war occurs between two different factions fighting internally but supported by two different states (Stewart, 2003, p 315), in Chelimo, 2011). Then, the last sort of conflict is domestic (or civil) conflict.
Traditionally, the Geneva Conventions regarding international humanitarian law were centered on international conflict. In fact, international humanitarian law does focus on international conflict, as opposed to be applied equally to civil conflict. But, as Haider (2013) notes, there has been an evolution of international humanitarian law to also apply to domestic conflicts. Thus, more and more, IHL law also is applied to conflicts within country (Policastri & Stone, 2013). One way that this has happened is throughout the recognition of customary international law (Haider, 2013) (for a discussion on customary international humanitarian law, see Henckaerts, 2005). In addition, “Article 3 common to the [Geneva Conventions] applies in the case of ‘armed conflict not of an international character’, whether between a state and a non-state armed group or between non-state armed groups” (Haider, 2013). As Haider (2013) notes, “[i]n order to be classified as a NIAC – and not a case of ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence’ (GC common Article 3, APII Art 1) – such that Article 3 and APII are applicable, the International Criminal Tribunal for the Former-Yugoslavia has indicated that two factual criteria must be satisfied:
- The violence must reach a certain level of intensity that distinguishes it from situations of internal disturbances such as riots and isolated acts of violence
- The parties involved must demonstrate a certain level of organization.”
So, in order to qualify, the conflict will be looked at from the perspective of the weapons used, the length of the fighting, the type of fighting, among other things. Then, with regards to organization, it will be determined whether there was coordination, recruitment, a chain of command regarding orders given, etc… (Haider, 2013).
In recent years, there has been greater attention to international humanitarian law as it relates to transnational armed groups. Some of the more recent questions regarding war and international humanitarian law center on what exactly is defined as war, and also what sorts of groups can be classified as carrying out an act of war, falling under the category of an ‘armed group’. Much of this discussion developed following the September 11th, 2001 terror attacks on the United States of America (Sassòli, 2006) (for a discussion of these issues, see Sassòli, 2006). ‘
In this article, we have addressed the question: “What is international humanitarian law.” International humanitarian law continues to be a very important component to international relations. Given continued conflicts, and human rights abuses during war, it is imperative that state and non-state actors alike ensure that all rules and laws related to international humanitarianism are followed. Yet, sadly, such violations continue to take place, whether it is the targeting of noncombatants, the restriction of food, water, or other aid, the mistreatment of prisoners, along with many other issues. It is for this reason that international organizations and human rights entities, along with state and non-state actors, continue to demand that all international humanitarian law is ensured, and that violators of this law will be held accountable in domestic and/or international courts of law.
What is International Humanitarian Law References
Chelimo, G.C. (2011). Defining Armed Conflict In International Humanitarian Law. Inquiries, Vol. 3, NO. 04,
European Commission (2015). Echo Factsheet. International Humanitarian Law. Humanitarian Aid and Civil Protection, pages 1-4. Available Online: http://ec.europa.eu/echo/files/aid/countries/factsheets/thematic/ihl_en.pdf
Haider, H. (2013). International Legal Frameworks for Humanitarian Action. Overview of International Humanitarian Law. GSDRC. January 2013. Available Online: http://www.gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-humanitarian-law/
Henckaerts, J.M. (2005). Study on Customary International Humanitarian Law: A contribution to the understanding and respect for the rule of law in armed conflict. International Review of the Red Cross. Vol. 87, No. 857, March 2005. Available Online: https://www.icrc.org/eng/assets/files/other/irrc_857_henckaerts.pdf
ICRC (2004). What is International Humanitarian Law? Advisory Service on International Humanitarian Law. July 2004. Available Online: https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf
ICRC (2005). Rules of International Humanitarian Law and Other Rules Relating to the Conduct of Hostilities: Collection of Treaties and Other Instruments. International Committee of the Red Cross. Available Online: https://www.icrc.org/eng/assets/files/other/icrc_002_0467.pdf
ICRC (2015). What is IHL? International Committee of the Red Cross. 18 September, 2015. Available Online: https://www.icrc.org/en/document/what-ihl
Mackintosh, K. (2000). The Principles of Humanitarian Action in International Humanitarian Law. Humanitarian Policy Group Report, Study 4, Oversees Development Institute. Pages 1-14. Available Online: https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/305.pdf
OHCHR (1991). Fact Sheet No. 13, International Humanitarian Law and Human Rights. July 1991. Available Online: http://www.ohchr.org/Documents/Publications/FactSheet13en.pdf
Policastri, J. & Stone, S.D. (2013). International Humanitarian Law. e-RG Electronic Resource Guide. ASIL.org, August 1st, 2013. Available Online: https://www.asil.org/sites/default/files/ERG_International%20Humanitarian%20Law%20(test).pdf
Sassòli, M. (2006). Transnational Armed Groups and International Humanitarian Law. HPCR Occasional Paper Series. Winter 2006, pages 1-43. Available Online: http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper6.pdf
Stewart, G.S. (2003), Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict, 85(850):313-350
United Nations (2004). Frequently Asked Questions on International Humanitarian, Human Rights, and Refugee Law in the context of armed conflict. United Nations Inter-Agency Standing Committee Task Force on Humanitarian Action and Human Rights 2004, pages 1-30. Available Online: http://www.unicef.org/emerg/files/FAQs_IHL.pdf