INTERNATIONAL HUMANITARIAN LAW : A PRELUDE

What is International Humanitarian Law?

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It 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.

International   humanitarian   law   is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State  practice  considered  by them as legally binding, and in general principles.

International humanitarian law applies  to  armed  conflicts.  It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international   law   set   out   in   the United Nations Charter.

Where did international humanitarian law originate?

International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs.

Universal  codification  of international  humanitarian  law began in the nineteenth century. Since then, States have agreed to a series  of practical rules, based on the bitter experience of modern warfare. These rules strike a careful balance between humanitarian concerns and the military requirements of States.

As the international community has grown, an increasing number of States have contributed to the development of those rules. International humanitarian law forms today a universal body of law.

Where is international humanitarian law to be found?

A major part of international humanitarian law is contained in the four Geneva Conventions of 1949. 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. Other agreements prohibit the use of certain weapons and military tactics  and  protect  certain categories of people and goods. These agreements include:

  1.   The  1954  Convention  for  the Protection  of  Cultural  Property in the Event of Armed Conflict, plus its two proto
  2.   The  1972  Biological  Weapons Convention;
  3.   The 1980 Conventional Weapons  Convention  and  its five protocols;
  4.   The  1993  Chemical  Weapons Convention;
  5. The 1997 Ottawa Convention on anti-personnel mines;
  6. The  2000  Optional  Protocol  to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Many provisions of international humanitarian law are now accepted as customary law – that is, as general rules by which all States are bound.

When does international humanitarian law apply?

International humanitarian law applies  only  to  armed  conflict;  it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally  to  all  sides  regardless  of who started the fighting.

International humanitarian law distinguishes between international and non-international armed conflict. International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions    and    Additional Protocol I.

Non-international armed conflicts are those restricted to the territory of a   single   State,  involving   either regular armed forces fighting groups of   armed   dissidents,   or   armed groups fighting each other. A more limited   range   of   rules   apply   to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II.

It  is  important  to  differentiate between international humanitarian law  and  human  rights  law. While some of their rules are similar, these two bodies of law have developed separately and are contained in different  treaties.  In  particular, human rights law – unlike international humanitarian law – applies in peacetime, and many of its provisions may be suspended during an armed conflict.

What does international humanitarian law cover?

International  humanitarian  law covers two areas:

  •    The protection of those who are not, or no longer, taking part in fighting;
  •    Restrictions on the means of warfare – in particular weapons– and the methods of warfare,              such as military tactics.

What is “protection”?

International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel.  It  also  protects  those who have ceased to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war.

These categories of person are entitled to respect for their lives and for  their  physical  and  mental integrity.   They   also  enjoy   legal the way in which civilians are to be treated when under the authority of an enemy power. This includes the provision  of  food,  shelter  and medical care, and the right to exchange messages with their families.

The law sets out a number of clearly recognizable symbols which can be used to identify protected people, places and objects. The main emblems are the red cross, the red crescent and the symbols identifying cultural property and civil defence facilities.

What restrictions are there on weapons and tactics?

International humanitarian law prohibits all means and methods of warfare which:

  •  Fail   to   discriminate   between those taking part in the fighting and  those,  such  as  civilians, who are not, the purpose being to           protect       the       civilian population, individual civilians and civilian property;
  • Cause   superfluous   injury   or unnecessary suffering;
  • Cause    severe    or    long-term damage to the environment.

Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical sick and the wounded, and in restricting the use of barbaric weapons.Given that this body of law applies during times of extreme violence, implementing the law will always be a matter of great difficulty. That said, striving for effective compliance remains as urgent as ever.

What should be done to implement the law?

Measures must be taken to ensure respect  for  international humanitarian law. States have an obligation to teach its rules to their armed forces and the general public. They must prevent violations or punish them if these nevertheless occur.In particular, they must enact laws to punish the most serious violations of the Geneva Conventions and Additional Protocols, which are regarded as war crimes. The States must also pass laws protecting the red  cross  and  red  crescent emblems.

Measures have also been taken at an international level: tribunals have been created to punish acts committed  in  two  recent  conflicts (the  former  Yugoslavia  and Rwanda). An international criminal court, with the responsibility of repressing inter alia war crimes, was created by the 1998 Rome Statute.

More specifically: 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.There are also detailed rules governing  the  conditions  of detention for prisoners of war and mines.

Is international humanitarian law actually complied with?

Sadly, there are countless examples of violation of international humanitarian law. Increasingly, the victims  of  war  are  civilians. However, there are important cases where  international  humanitarian law has made a difference in protecting   civilians,  prisoners,  the governments and various organizations, we can all make an important contribution to compliance with international humanitarian law.

source- http://www.icrc.org

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