Chapter 2: International Humanitarian Law

Definition and Characteristics of International Humanitarian Law

• International humanitarian law is currently the fashionable term used by the United Nations (UN), the International Court of Justice (ICJ) and the International Committee of the Red Cross (ICRC), in order to stress both the humanitarian purpose of this law and the convergence/synthesis between laws of war and international human rights law.
• The law of war reflects the military perspective and is the old-fashioned one since the term armed conflict has now replaced war.
• The law of armed conflict , however, is a better term since this term covers both the restriction of warfare (military aspect) and the protection of those who are not involved in actual hostilities and those are involved, e.g. combatants (humanitarian aspect). Along with the entry into force of the United Nations Charter and the prohibition on the use of force, war and other concepts related to it was replaced with different expressions such as dispute, situation, use of force, and aggression.

Sources of International Humanitarian Law

As a part of international law, the sources of IHL are also commonly accepted sources as stated in the Art. 38(1) of the Statute of the ICJ; primarily treaties, custom and general principles of law; secondarily, judicial decisions and doctrine. IHL is one of the most highly codified parts of international law, and most of its rules are found in multilateral treaties. However, some of these treaties represent rules of customary international law; and also, there exist some customary international law principles above treaty rules. Although treaty rules may be more practical and less ambiguous, customary rules can be more dynamic and develop quickly to answer contemporary challenges.

Treaties

IHL treaties are generally divided into two: Hague Law, rules on how hostilities to be conducted, and Geneva Law, rules governing the treatment of victims of war. Contemporary Hague Law includes currently applicable 1907 Hague Conventions such as the Hague Convention IV on War on Land and its Regulations, the Hague Convention V on Neutrality and so on.

Geneva Law includes the four Geneva Conventions of 1949 and their three Additional Protocols. Namely, the Geneva Convention (I) on Wounded and Sick on Land; the Geneva Convention (II) on Wounded, Sick and Shipwrecked at Sea; the Geneva Convention (III) on Prisoners of War, the Geneva Convention (IV) on Protection of Civilians, including administration of an occupied territory, the 1977 Additional Protocol (I) on international armed conflicts, the 1977 Additional Protocol (II) on non-international armed conflicts, and the 2005 Additional Protocol (III) on additional distinctive emblem.

These two groups of treaties are now regarded as complementing each other, especially after the 1977 Additional Protocols. For example, Additional Protocol I modernize rules of combat, and II also deals with rules of combat. Furthermore, there are other treaty sources such as the 1980 Convention on Certain Conventional Weapons or the 2008 Convention on Cluster Munitions.

Custom

The degree to which IHL treaties reflect customary law is controversial. The original Hague Law and much of Geneva Law are now regarded as reflecting customary law. For instance, in its Judgment of 30.9-1.10.1946 the Nuremberg Tribunal considered the 1907 Hague Convention V or ICJ considered the Common Article 3 of the 1949 Geneva Conventions as customary rules. The importance of customary law can be seen in the Martens clause.

General Principles of Law

Although their identification is difficult and they are generally subordinate to custom and treaties in the application, general principles of law may play a decisive role, especially in the decisions of international courts. In this vein, several decisions of international courts refer to general principles of law such as elementary considerations of humanity with regard to IHL obligations. The importance of general principles of law is emphasized by the Martens Clause. The Martens clause aims to offer protection to victims of armed conflicts even when there is no applicable rule of IHL. It is an important principle of IHL which was formulated by the Russian international law professor Friedrich von Martens and first adopted at the First Hague Peace Conference of 1899.

Development of International Humanitarian Law

Although regulation of warfare as a social phenomenon dates back to the ancient times, modern laws of warfare developed from the eighteenth and nineteenth centuries onwards with the modernization of warfare itself. Napoleonic Wars in Europe (1803-1815) and the American Civil War (1861-1865) were critical examples of such wars with their tragic consequences on the battlefield. The codification attempts in Europe began with the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864 (revised in 1906), with the initiations of a Genoese businessman, Henry Dunant. This was the starting point of a body of a humanitarian law governing the treatment and protection of those hors de combat, civilians and other non-combatants. 1864 Geneva Convention adopted the emblem of the Red Cross as a neutral protective sign for hospitals and those assisting the wounded and sick on the battlefield.

The first cornerstone of the codifications was the Hague Conferences of 1899 (three conventions and three declarations) and 1907 (thirteen conventions). The second cornerstone of the codifications was the Four Geneva Conventions of 1949. The Conventions were the result of the massive atrocities of World War II committed against wounded, captured, surrendering combatants and millions of civilians in occupied territories. Especially the Fourth Convention was an innovation since it attempts to protect civilians during hostilities and military occupation.

In parallel with treaties, State practice and the case-law of the Nuremberg and Tokyo Tribunals; the ICJ and the ad hoc Tribunals for the former Yugoslavia, Rwanda, and the International Criminal Court (ICC) established a body of customary international humanitarian law, applicable in all armed conflicts.

Scope of International Humanitarian Law

Scope of IHL refers to the strategic situations in which rules of IHL may become applicable. In terms of IHL, strategic situations can be divided into five categories as peace, armed conflict, neutrality, occupation, and collective security (peace support) operations. Peace has no commonly accepted definition. However, it can be deduced from certain conditions such as no declaration of war, armed conflict, civil disorder or disturbance present. The applicable law in situations of peace is the domestic laws of a State, international human rights law and limited provisions of IHL. Armed conflicts are international or noninternational strategic situations, in which, at least one side of a conflict uses armed force to achieve its political goals. International armed conflicts are armed conflicts between two or more States. The lawfulness of the beginning of the conflict (legitimacy aspect of resorting to the use of force) does not affect the application of IHL. It would still apply to all parties involved in the conflict. The mere fact that there is an armed conflict is enough for IHL to be applied. No declaration of war is required (Common Art. 2). Non-international armed conflicts are protracted armed confrontations between governmental armed forces and the forces of one or more-armed groups, or between such groups operating on the territory of a State. Neutrality refers to the status of a State that is outside of an international armed conflict. This includes not helping the combatants of the belligerent States. Collective Security/Peace Support Operations include peacekeeping and peaceenforcement operations conducted by the UN or authorized by the UN Security Council. Peacekeeping is the deployment of military forces by the UN to maintain or re-establish international peace and security, based on the consent of the parties to an armed conflict.

Application of International Humanitarian Law

IHL tries to balance the military necessity and humanitarian considerations. In this direction, several principles form its framework. Rules of IHL reflect these principles. These rules can be separated into two groups, namely rules regarding the conduct of hostilities and the protection of the victims of armed conflicts.

General Principles

Generally, all rules of IHL are shaped around the “equilibrium point between two fundamental principles, each of which pulls in a different direction”: military necessity and humanity.

Military necessity refers that all combat activity must be justified on military grounds and those are not militarily necessary are to be prohibited.

Humanity, on the other hand, limits the means and methods of warfare and requires that those who have fallen into enemy hands be treated humanely at all times. The two principles can be regarded as a checksand-balances system.

This balance between military necessity and humanitarian considerations finds expression in several fundamental principles of IHL. One of them is proportionality, where the infliction of incidental harm on non-combatants cannot be avoided. Such other principle is distinction, which refers to an obligation to make a distinction between combatants and non-combatants, military objectives (targets) and civilian objects during an armed conflict.

The Conduct of Hostilities

As mentioned above, one of the main aims of IHL is to constrain the conduct of military operations in a humanitarian way. The right of the parties to an armed conflict to choose means and methods of warfare is not unlimited.

Traditionally, an armed conflict starts with an ultimatum or a declaration of war. However, in modern practice, the mere fact that there is an armed conflict, i.e. beginning of a military operation, is enough for the application of IHL (see, Common Article 2 of the Geneva Conventions). Actual hostilities may cease through the general close of military operations or an armistice (truce / ceasefire) agreement between parties to the armed conflict. In very special and simple cases, an armed conflict may also end with the conclusion of a peace agreement or establishment of normal relations.

The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, which are subject to an internal disciplinary system. Members of armed forces include both combatants and noncombatants. Medical personnel and religious officials are regarded as non-combatants. As Additional Protocol I lays down, only combatants have the right to participate directly in hostilities.

Means and methods to be used during an armed conflict are not unlimited. IHL prohibits some weapon types and limits the use of some other. According to the Article 35 of Additional Protocol I, in the conduct of hostilities, it is prohibited to employ weapons, projectiles, and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering (see also, the Article 23 of the 1907 Hague Regulations). Examples would include small projectiles (1868 St Petersburg Declaration), dum- dum bullets (1899 Hague Declaration), and asphyxiating and deleterious gases (1899 Hague Declaration; 1925 Geneva Protocol).

There is no treaty prohibiting the use of nuclear weapons. In its well-known advisory opinion, the ICJ stated that there is no customary rule prohibiting the use of nuclear weapons (ICJ, 1996: 247). Additional Protocol I prohibits the use of methods or means that may cause widespread, longterm, and severe damage to the natural environment.

Protection of the Victims of Armed Conflicts

The other basic aim of IHL is to protect persons who are not taking a direct part in the actual hostilities. Such rules, generally, are found in the 1949 Geneva Conventions. Generally, there are four types of protected persons: wounded and sick, shipwrecked, prisoners of war, and civilians.

The First Geneva Convention concerns the wounded and sick on land. Protected persons according to this Convention are members of armed forces, militias and volunteer corps of a party to the conflict, members of organized resistance movements on some conditions, crews of military vehicles and crafts, and resisting inhabitants of occupied territories.

The Second Geneva Convention concerns the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea and have provisions similar to the First Convention such as humane treatment of protected persons, nondiscrimination, and prohibition of violence and torture against them (Art. 12), Similarly, hospital ships should not be attacked, captured and should be protected and respected.

According to the Article 118 of the Third Geneva Convention, PoWs may be kept by the detaining power until the end of active hostilities without any particular judicial or administrative procedure. This is not a punitive act, but a preventive security measure in nature. It essentially aims to keep hostile combatants off the battlefield under humane conditions and to protect them from the dangers resulting from on-going hostilities.

The Fourth Geneva Convention concerns the protection of civilian persons in time of war. It was built upon the 1907 Hague Convention (IV) on the Law and Customs of War on Land and supplemented by the 1977 Additional Protocol I. The Fourth Geneva Convention applies from the beginning of any conflict or occupation until the general close of military operations (Art. 6). The Fourth Geneva Convention in addition ensures protection for civilians in occupied territories. The Fourth Geneva Convention further stipulates that the Occupying Power must ensure the food and medical supplies, hygiene and public health or let relief organizations provide such aid for the civilian population (Arts. 55, 56, 59, 60). Moreover, the occupying power must let the population minister their religious affairs (Art. 58).

1977 Additional Protocol II ensures further protections during a non-international armed conflict within the territory of a State Party.

Enforcement of International Humanitarian Law

Rules of IHL may be (and occasionally is) violated by States. Enforcement of IHL refers to ensuring the conformity with the rules of IHL. There are two levels in which IHL could be enforced: State-level and individual level. Any State party to the conflict would be responsible for the breaches of both treaty and customary IHL, and acts committed by members of its armed forces. Individuals also have criminal responsibility for the acts they committed during an armed conflict. A variety of enforcement mechanisms exists, for both types of responsibility.

State Responsibility

States, as the primary international legal persons, are again primarily responsible for their actions violating the general or special rules of international law.

Responsibility of the parties to conflict includes also finding and punishing the persons committing, or ordering to be committed, any of the grave breaches of the Conventions.

Parties to a conflict may appoint a Protecting Power to look after the interests of the nationals of one party to a conflict under the control of the other. Such Power safeguards compliance with the relevant rules.

Additional Protocol I stipulates an International Fact- Finding Commission to inquire into grave breaches of the Geneva Conventions and the Protocol or other serious violations of IHL (Art. 90).

Individual Responsibility

Along with the responsibility of States for the breaches of IHL, individuals too are responsible for the acts they committed during an armed conflict.

The concept of war crimes can be traced back to the 1945 Charter of the International Military Tribunal, Nuremberg. According to the article 6/b of the Charter, war crimes are violations of the laws and customs of war including, but not limited to, murder, ill-treatment of civilian population or PoWs, killing of hostages, plunder, destruction of cities willingly, or devastation not justified by military necessity.

The 1949 Geneva Conventions were written to protect the various non-combatant victims of international armed conflicts. Each Convention set forth various positive and negative duties toward those persons protected by its provisions.

The contemporary definition of war crimes appears in the Article 8 of the Rome Statute. This definition covers both international and noninternational armed conflicts. For international armed conflicts, grave breaches of 1949 Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict are regarded as war crimes. For noninternational armed conflicts, serious violations of Common Article 3 and other serious violations of the laws and customs applicable in armed conflicts not of an international character fall into the definition of war crimes.