International Humanitarian Law
According to the International Committee of Red Cross (ICRC), international humanitarian law (IHL) is a compendium and compilation of rules which limit the effect of armed conflicts upon people who are neutral in any of these conflicts on the basis of humanitarian concerns.
This law is also referred to as the ‘law of war’ or ‘law of armed conflict’ and it mainly comprises of the Geneva Conventions and Hague Conventions, deriving humanity from barbarism. The foundation of IHL was established by Henry Dunant and Francis Leiber around the 19th century and both made enormous contributions towards this field of law.
Both international humanitarian law and human rights law share a nexus as they protect human dignity and guarantee physical and mental well being. However, they differ in perspective as human rights law applies only during peace time and many of its provisions are suspended during an armed conflict. Moreover, human rights law also reflects the attitude of the government towards its citizens, while international humanitarian law concerns itself with the safety of the people who are not involved in any armed dispute during war time.
International humanitarian law consists of many agreements and conventions between states. IHL solely applies to armed conflict and does not regulate coercion by any state upon another state or armed group, yet it covers the limitations applied to these coercive acts. Francis Leiber and Henry Dunant focused more on the situations of war in which they emphasized on differentiation and distinction between people who were directly involved in war or any armed conflict and those who were innocent and being directly affected by the armed dispute. According to IHL, there should be a clear difference between ordinary citizens and soldiers of war and those not part of any armed conflict should be spared from atrocities of war disputes.
For this noble cause, the International Committee of Red Cross (ICRC), Switzerland is on the humanitarian mission to protect people trapped in armed conflicts by using international humanitarian law as a juggernaut and providing support and assistance in terms of coordinating international relief activities during crisis. It also endeavors to prevent further atrocities by promoting and solidifying humanitarian law and universal humanitarian principles. On the downside, politicization of this organization can potentially corrupt it. IHL is also considered to be a relatively sensitive legal podium as its misinterpretation can pretty much change the lives of those who are directly participating in a war or those who are hors de combat (outside the fight).
There are numerous fundamentals and terminologies upon which international humanitarian law has been crafted and established, such as the Geneva Conventions and Hague Conventions. One such clause known as the Martens Clause is given below for reference:
“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”
This clause safeguards the whole scheme of the humanitarian cause and provides formidable support to the well being of mankind.
- Serious penalties can be imposed upon the perpetrator for breaching IHL, as was done in a case at the Rwandan Tribunal, Prosecutor vs. Jean-Paul Akayesu (case no ICTR-96-4-T), where the Prosecutor of the International Criminal Tribunal for Rwanda, in his authority under Article 17 of the Statute of the Tribunal, charged Jean Paul of committing genocide breaching the common Article 3 of the Geneva Conventions and infringing international humanitarian law.
- Similarly in another case in 1998, Prosecutor vs. Radislav kristic (case no IT-98-33-T), General Major Radislav Kristic was indicted for genocide, crimes against humanity and violations of the customs of war. The trial chamber in 2001 convicted Kristic for committing genocide and crimes against humanity, briefed in a detailed manner under international humanitarian law, and awarded him 46 years of imprisonment.
- In a similar case, Prosecutor vs. Paul Bisengimana (ICTR -00-60-T), Paul Bisengimana was convicted of genocide and breach of IHL and was awarded 15 years of imprisonment.
- In another notable case, Prosecutor vs. Kayishema and Ruzindana (ICTR-95-1-T), it was held by the trial chamber that both Kayishema and Ruzindana were guilty of committing war crimes and breaching IHL and were awarded life imprisonment of 25 years.
International humanitarian law also has other terminologies under its umbrella regarding the upheaval of war. Some of them are:
- Jus ad bellum – the criteria by which a state is given the right to war and various rules by which a war can be converted into a just war (further explained by G J Starke in Introduction to International Law, page 168, Para 3).
- Jus ad bello – a set of international rules that covers matters of armed conflict and relevant parties.
- Military necessity – an armed attack by a state towards another in order to gain complete surrender and submissiveness (further explained by Professor Oppenheim in Legal Commentary on International Humanitarian Law).
- Proportionality – a term used regarding war whereby balance must be maintained by both states, according to the ICRC principles, especially by the one which is stronger.
- Hors de combat – covers all those who are not directly involved in the armed conflict, including those who are ill, injured or defenseless (customary international humanitarian law, rule 47).
There also exist certain hindrances and setbacks that international humanitarian law faces every day.
- Firstly, IHL is mainly dependent on the concept of ‘humanity’ and there is a major concern that humanity itself does not have any real definition.
- Secondly, the concept of ‘might is right’ is also an obstacle for the IHL. There are certain countries and groups which negate IHL and continue with their barbaric acts.In order to address these hindrances, the authorities should adopt strict sanctions against entities that breach IHL.
- Another issue is that of funding. It is still a mystery as to who should be funding towards the promotion of IHL and its essence and how the whole procedure should be funded.
- Since the inception of international humanitarian law, there have been various disputes which have resulted in casualties and mortal demise. In order to settle these problems, IHL is the only remedy we can utilize.
In a nutshell, it can be argued that international humanitarian law serves as a deal that can save human rights during wartime. We are still witnessing its development and impact.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.