International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus "comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law."[1] It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.

The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.

Historical Convergence between International Humanitarian Law and the Laws of War

Although the term “humanitarian law” did not come into use until after World War II, humanitarian efforts to protect the victims of armed conflicts, i.e. the wounded, the sick and the shipwrecked have antecedents dating back to ancient times.[2] However, systematic attempts to limit the savagery of warfare only began to develop in the 19th century. Such concerns were able to build on the changing view of warfare by states influenced by the Age of Enlightenment. The purpose of warfare was to overcome the enemy state and this was obtainable by disabling the enemy combatants. Thus, "(t)he distinction between combatants and civilians, the requirement that wonded and captured enemy combatants must be treated humanely, and that quarter must be given, some of the pillars of modern humanitarian law, all follow from this principle."[3]

However, it wasn't until second half of the 18th century that more systematic efforts were made to try prevent the suffering of war victims. Such activity was inspired by the involvement of a number of individuals such as Florence Nightingale during the Crimean War and Henry Dunant a Genevese businessman who had worked with wounded soldiers at the [[Battle of Solferino]. He wrote a book, A Memory of Solferino, which described the horrors he had witnessed. His reports led to the founding of the International Committee of the Red Cross (ICRC) in 1863 and the convening of a conference in Geneva in 1864 which drew up the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.[4]

This “Law of Geneva”, for most of the 20th century, was distinguished from the "Law of The Hague" or the Laws of War proper. The Law of The Hague "determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm." [5] In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives. [6]

Main article: Laws of War

The Law of Geneva, was directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the ICRC.[7] This focus can be found in the Geneva Conventions.

With the adoption of the 1977 Protocols to the Geneva Conventions, the two strains of law began to converge. Already before, articles focusing on humanity could be found in the Law of The Hague (i.e. the protection of certain prisoners of war and civilians in occupied territories) articles which were later incorporated into the Law of Geneva in 1929 and 1949). However the Protocols of 1977 relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights aspects. [8]


Geneva Conventions

Original Geneva Convention in 1864.
Progression of Geneva Conventions from 1864 to 1949.

Main article: Geneva Conventions

The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions safeguard the human rights of individuals involved in armed conflict, and build on the 1899 and 1907 Hague Conventions, the international community's first attempt to formalize the laws of war and war crimes in the nascent body of secular international law. The conventions were revised as a result of World War II and readopted by the international community in 1949.

The Geneva Conventions are:

In addition, there are three additional amendment protocols to the Geneva Convention:

All four conventions were last revised and ratified in 1949, based on previous revisions and partly on some of the 1907 Hague Conventions. Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars. Nearly all 200 countries of the world are "signatory" nations, in that they have ratified these conventions. The International Committee of the Red Cross is the controlling body of the Geneva conventions (see below).

Jus in bello

The agreements regarding acceptable practices while engaged in war are referred to as the jus in bello. Thus the Geneva Conventions are a set of jus in bello. Any international agreements about the justifiable reasons for a country to declare war against another can be referred to as jus ad bellum.

Non-uniformed guerrillas and Protocol 1

Under the Third Geneva Convention a fighter or belligerent in an international armed conflict who wanted lawful combatant status (and therefore prisoner of war status if captured), would have to meet certain criteria including:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war." (From Article 4)

Lawful combatants are accorded "combatant's privilege," whereby they are exempted from the ordinary criminal law of the place they are fighting in. This means that they cannot be tried for murder, for example, for killing soldiers of the opposing side. Prisoners of war are accorded this privilege in the event they are charged with crimes after capture. They may be tried for war crimes, such as murdering civilians or torture, but not acts of violence in accordance with the laws and customs of war such as killing or capturing enemy soldiers or damaging military property.

The 1979 First Protocol Additional to the Geneva Conventions (Protocol 1) seeks, among other things, to effectively bring legal combatant status to forces not adhering to the uniform and certain other regulations of the Hague and Geneva Conventions, which arguably can include those some may consider terrorists.

The definition of an "international armed conflict" would include "armed conflicts in which peoples are fighting against colonial domination and alien [foreign] occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations." (From article 1[4])

The Protocol may, unlike the 1949 Conventions that require combatants to wear uniforms, also give lawful combatant status to non-uniformed guerrilla in international armed conflicts as long as they bear their arms openly during military operations.

Article 44(3) states:

"In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly."

Article 44(7) then states:

"This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict."

Protocol 1 provisions are effectively blocked from coming into meaningful force due to the fact that most nations likely to be directly involved in conflict, especially with guerrillas, have refused to ratify it, including the United States of America and Israel, India, Indonesia, Iran and Iraq, or have ratified or acceded to it only with unilateral declarations limiting their acceptance, including Australia, China, France, Germany, Russia, Spain and the United Kingdom.

It is unclear whether the British government considers or considered Protocol 1 to be applicable to guerrillas (or "insurgents" or "terrorists") fighting foreign troops in Iraq or Afghanistan.

It is likely they do not consider it applicable in Iraq, especially since the official position of the British government is that the alien occupation of Iraq ended with the official handover of power to the US-backed (and internationally-recognised) Iraqi government--therefore there is officially no alien occupation to resist. Likewise, NATO forces are in Afghanistan with the permission of US-backed (and internationally recognised) president Hamid Karzai.

This would be disputed by some who do no support the presence of Anglo-American forces in Iraq, who would consider their presence still an occupation--just as the US government considered Soviet forces to be in occupation of Afghanistan in 1980s. Officially, Soviet troops were in Afghanistan with the permission of the Soviet-backed government, in order to aid the Afghan Army's counter-insurgency war against "Muslim terrorists" (the US-backed mujahadeen guerrillas).


International Committee of the Red Cross

Flag of the ICRC

Main article: International Committee of the Red Cross

Under the 1949 Geneva Conventions the International Committee of the Red Cross (ICRC) has legal status as a non-governmental sovereign entity. It has a mandate to be the controlling authority of International Humanitarian Law.

The International Committee of the Red Cross (ICRC) is an impartial, neutral, and independent organization whose exclusively humanitarian mission is to to protect the lives and dignity of victims of war and internal violence and to provide them with assistance.

— Mission of ICRC

The ICRC directs and coordinates international relief and works to promote and strengthen humanitarian law and universal humanitarian principles.[9] The core tasks of the Committee, which are derived from the Geneva Conventions and its own statutes,[10] are the following:

The ICRC drew up seven fundamental principles in 1965 that were adopted by the entire Red Cross Movement.[11] They are humanity, impartiality, neutrality, independence, volunteerism, unity, and universality.[12]

Although the ICRC has no powers to enforce the rights enshrined in the Geneva Conventions, its statements carry significant force, and few countries or warring parties deny the ICRC access to the individuals it exists to protect. Doing so has a significant effect on public opinion and international standing and can be taken as an implicit admission of wrongdoing. The initial refusal of the United States to admit the ICRC to its detention facility at Guantanamo Bay drew considerable international condemnation.[13][14]

Violations and punishment

During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.

Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5.

Spies and "terrorists" are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.

After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.


Basic rules of International Humanitarian Law

  1. Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely.
  2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
  3. The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the red cross or the red crescent must be respected as the sign of protection.
  4. Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
  5. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
  6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
  7. Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.[15]

Examples

Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a Red Cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or white flag are expected to maintain neutrality, and may not engage in warlike acts; in fact, engaging in war activities under a white flag or red cross is itself a violation of the laws of war.

These examples of the laws of war address declaration of war, (the UN charter (1945) Art 2, and some other Arts in the charter, curtails the right of member states to declare war; as does the older and toothless Kellogg-Briand Pact of 1928 for those nations who ratified it but used against Germany in the Nuremberg War Trials), acceptance of surrender and the treatment of prisoners of war; the avoidance of atrocities; the prohibition on deliberately attacking civilians; and the prohibition of certain inhumane weapons. It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform and fighting in that uniform, is forbidden, as is the taking of hostages.


See also

Notes

  1. ^ ICRC What is international humanitarian law?
  2. ^ Bernhardt, Rudolf (1992). Encyclopedia of public international law. Amsterdam: North-Holland. ISBN 0-444-86245-5., Volume 2, pp. 933-936
  3. ^ Christopher Greenwood in: Fleck, Dieter, ed. (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA. ISBN 0-19-923250-4. ((cite book)): |author= has generic name (help)CS1 maint: multiple names: authors list (link)p. 20.
  4. ^ Christopher Greenwood in: Fleck, Dieter, ed. (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA. ISBN 0-19-923250-4. ((cite book)): |author= has generic name (help)CS1 maint: multiple names: authors list (link)p. 22.
  5. ^ Pictet, Jean (1985). Development and Principles of International Law. Dordrecht: Martinus Nijhoff. ISBN 9024731992. p.3
  6. ^ Kalshoven, Frits and Liesbeth Zegveld (March 2001). Constraints on the waging of war: An introduction to international humanitarian law. Geneva: ICRC. p.40
  7. ^ Pictet (1985) p.3.
  8. ^ Kalshoven+Zegveld (2001) p. 34.
  9. ^ "ICRC: The Mission". 7 May 2006. Retrieved 2007-12-29. ((cite web)): Check date values in: |date= (help)
  10. ^ "The Statutes of the ICRC". Retrieved 2007-12-29.
  11. ^ Forsythe (2005) p.161
  12. ^ "ICRC: The Fundamental Principles". 1 January 1995. Retrieved 2007-12-28. ((cite web)): Check date values in: |date= (help)
  13. ^ ICRC Operational Update, 26 July 2004
  14. ^ "UNITED STATES OF AMERICA: Human dignity denied. Torture and accountability in the 'war on terror'". Amnesty International. Retrieved 2007-12-28.
  15. ^ de Preux (1988). Basic rules of the Geneva Conventions and their Additional Protocols, 2nd edition. Geneva: ICRC. p. 1.

References

Carey, John; Dunlap, William (2003). International Humanitarian Law: Origins (International Humanitarian Law) (International Humanitarian Law). Dobbs Ferry, N.Y: Transnational Pub. ISBN 1-57105-264-X.((cite book)): CS1 maint: multiple names: authors list (link)

Gardam, Judith Gail (1999). Humanitarian Law (The Library of Essays in International Law). Ashgate Pub Ltd. ISBN 1-84014-400-9.

Fleck, Dieter (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA. ISBN 0-19-923250-4.

Pictet, Jean (1985). Development and Principles of International Law. Dordrecht: Martinus Nijhoff. ISBN 9024731992.

UNESCO Staff (1997). International Dimensions of Humanitarian Law. Berlin: Springer. ISBN 92-3-102371-3.