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International Humanitarian Laws in international armed conflicts

June 26, 2021 0

 

International Humanitarian Laws


Introduction:

Like international law, international humanitarian laws (IHLs) is also a comprehensive discourse of study because it consists with many conventions and customary laws. Basically IHLs refer to laws of war or laws of conducting forces. IHLs applies only during armed conflicts (both international and non-international). They do not apply internal disturbances or tensions (demonstrations, isolated acts of violation), but they can apply only to domestic conflicts depends on its expansion. Their aim is to bring a balance between humanity and military campaign, though they do not concern or question upon legitimacy of the conflicts. They just want to protect non-combatants through reducing atrocities and obliging international norms during armed conflicts  

Principles of IHLs:

The principles are sourced in both customary international law as well as the sources examined in Module 3, in particular the four Geneva Conventions 1949 and two Additional Protocols 1977.

The core fundamental principles of IHL are:

  1. The distinction between civilians and combatants.

  2. The prohibition to attack those hors de combat (i.e. those not directly engaged in hostilities).

  3. The prohibition to inflict unnecessary suffering.

  4. The principle of necessity. 

  5. The principle of proportionality

  6. The principle of humanity.

Two confusion about IHLs:

While studying about IHLs generally two confusion may arise among readers namely:

  • Are Human rights and IHLs are the same concepts?

  • What is the basic difference between Hague Convention and Geneva Convention?? 

For the former discussion, human rights and IHLs are different. Where “Human rights” refer the rights and obligations which is treated by the government to its subjects in national arena during peace time. IHLs discuss how state behave in war time situation with each other in international area. For the latter category, Geneva Convention IV intended to protect who were no longer participating in the hostilities. And Hague Convention intended to the means and methods of warfare. 

Who are protected under IHLs?:

For answering this question, we first have to understand two basic concepts relating to IHLs protection framework namely, combatant, and protection. 

Concept of Combatant in IHLs:

Combatant is the term which is used in the context of international armed conflicts. Definition of combatant includes members of armed forces except medical and religious personnel, un-uniformed combatant who carries arms openly during military engagement, and paramilitary, special forces incorporated to armed forces. Moreover, the rights and privileges of combatant are prescribed in article 43-44 in Additional protocol I of 1977.

Concept of Protection in IHLs:

State parties must have promised of human treatment based on humanity during armed conflicts. Because all the principles or customs for humanity must include in the time of conflicts. Moreover, all the existing obligations relating to armed conflicts must have obeyed by the state parties as they ratified the Geneva Convention and its Additional protocol. All these will provide protection to noncombatant which is the ultimate goal of IHLs. 

Persons protected under IHLs: 

The Geneva Conventions and their Additional Protocols protect the sick, wounded and shipwrecked not taking part in hostilities, prisoners of war and other detained persons, as well as civilians and civilian objects. 

Indiscriminate killings in armed conflicts irrespective of combatant and non combatant forced to adopt customary laws into conventions. The sole of these was the idea of protected persons and objects. Before WWI, the primary objectives of was the protection or care of sick and wounded people in armed conflicts through establishing an emblem of Red Cross.  The emblem also protects medical equipment, such as vehicles and medical buildings as long as they are not being used for military purposes.

The concept of “prisoners of war” was incorporated into the convention to protect against inhuman treatment in interwar period. ICRC visits to people deprived of their freedom cover some 70 countries and reach almost 500,000 detainees each year. Later, Geneva IV provide provisions of protecting civilian who are not parted with conflicts. 

In Additional Protocol I & II, IHLs also provide provisions for women and children as they are vulnerable victims to any armed conflicts whether it is international or non-international. These conflicts creates people afraid, many of them become internally displaced people when the conflicts taking place domestically,  when they cross their own territory to safe themselves from such persecution they become refugees, and IHLs have separate protection materials to refugees and internally displaced people. Moreover, humanitarian personnel are also protected persons under IHLs. 

So these are the persons who are supposed to protected under IHLs during armed conflicts. 

Who are civilian and Who are not civilian:

Generally, Individuals are civilians as they are not part of any military engagement in armed conflicts. International Humanitarian Laws (IHLs) provide protection to civilian by categorizing distinctively under IHLs provisions. 

According to IHLs, a civilian is any individual who is not a member of one of the following groups:

  • the regular armed forces, even one that professes allegiance to a government or authority not recognized by the adverse power;

  • the armed forces of a party to the conflict, as well as militias or volunteer corps forming part of such armed forces;

  • all organized groups and units, as long as these groups and units are under a command that is responsible for the conduct of its subordinates, even if the party to the conflict to which it responds is represented by a government or authority not recognized by an adverse party. 

  • organized resistance movements and other small armed groups (GCIII Arts. 4.a.1–3, 4.a.6; API Arts. 43, 50)

In international armed conflicts military groups can be identified as they fight against state, but in non-international armed conflicts armed groups may create confuse as ordinary civilian may include into the conflicts, because domestically this conflicts may arise from different points such popular uprising, guerrilla warfare, movement, or terrorism. Individual civilian may take part any of these hostilities. So it creates difficulties to IHLs to identify who is civilians, and who are combatant as it is a matter of protection. Here Additional Protocols confirm that such people retain their civilian status and do not lose the protection that international humanitarian law provides for civilians, except during the period of direct participation in hostilities  (API Arts. 45.1, 51.3; APII Art. 13.3). 

Moreover, all civilians, without any adverse distinction and in all situations, must be protected from the effects of military operations (GCIV Art. 13). Hence, they may not be the target of fighting or attacks, and they have the right to receive the necessary assistance. This general system of protection is defined in Article 51 of Additional Protocol I. Articles 52 to 56 protect civilian objects, including those indispensable to the survival of the civilian population (API Art. 54). 

The rule whereby civilians lose their protection against attack when and for such time as they take a direct part in hostilities is contained in Article 51(3) of Additional Protocol I. Armed groups most of the time state that they attack on civilian because they become unable to distinguish who are civilians and who are not.

Article 53(3) of Additional Protocol II state that civilians have immunity until they are engaged into direct conflict. This rules are also included in military manuals of most of countries for both international and non-international armed conflicts. In the case concerning the events at La Tablada in Argentina, the Inter-American Commission on Human Rights held that civilians who directly take part in fighting, whether single or as members of a group, thereby become legitimate military targets but only for such time as they actively participate in combat. 

But the term “actively participate” or “direct participate” has no clear definition in Geneva Convention and Additional Protocols. The Inter-American Commission on Human Rights has stated that the term “direct participation in hostilities” is generally understood to mean “acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and matériel”. Besides sometime civilian works as spies, guards, couriers for military etc. So these facts make civilian lawless under legal regimes of IHLs. 

Legitimization of attacks on civilian:

Is the presence of combatant among civilian population legitimates an attack on civilian?-not actually, because there are certain regulation of legitimise in attacking. However, the first key principle regarding targets is the principle of distinction namely the belligerent must distinguis between combatant and non combatant targets, and attack upon the latter category is prohibited. The principle is complemented by a second key principle: principle of proportionality. 

We may have to examine the proportionality of an attack in situation where the intent of the attacker is to target a military objectives. But attack is expected to cause civilian casualties or damage to civilian objects. IHL doesn’t prohibit collateral damage (collateral damage is any death, injury, or other damage inflicted that is an unintended result of military operations) to civilian or civilian objects. It doesn’t even prohibit extensive collateral damage. However, IHLs prohibit any attacks that are expected to cause collateral damage which is excessive in relation to the military advantage. So in cases where the collateral damage is to be expected, the lawfulness of the attack must be assessed through a test of proportionality. 

The proportionality test is a flexible tool that enables a balance to be struck between the expected loss of life or injury to civilians, and damage to civilian objects with the concrete and direct military advantage anticipated from the attack. There, the tests of proportionality is very difficult to calculate. So let's imagine that we are a legal adviser to a belligerent and we must advise about the legality of planning an attack against a school where all the military personnel are meeting. The attack could not be conducted when hundreds of childrean are leaving the school with their guardians. What would we advise? The killing of the enemy commanders may end the war, but the attack will cause very significant civilian casualties, even if very precise weapons are used.

Most often proportionality tests become complicated by several elements in such circumstances. The first problem is that we are essentially trying to balance incommensurable values. Obviously there is no recognised rate of exchange for school children to general's. Second problem comes from the fact that the proportionality tests are not concerned with the actual outcome of the attack, but the expected collateral damage and the anticipated military advantage. In short, it is matter of expectation and anticipation. The assessment of the proportionality requirement is even more complicated due to the imprecise content of the two terms of the equation. Therefore, it will have to be made on case by case basis after all precautionary measures have been taken.

Conclusion: 

International humanitarian law is the law of war. It provides protection the sick, wounded and shipwrecked not taking part in hostilities, prisoners of war and other detained persons, as well as civilians and civilian objects. Moreover, IHLs discuss who is civilians, who is not based on their engagement to hostilities. And one of IHLs principles, principle of proportionality, emphasis that military attack on non military people will not be allowed unless it fulfil the requirements needed to IHLs. 



Badirujjaman

Department of International Relations 

Jahangirnagar University 



Reference: 

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