Analysis of International Humanitarian Law

Introduction International Humanitarian Law is a set of rules for the countries to follow at time of armed conflicts. It minimizes the effect of armed conflicts for humanitarian reasons. This brings us to the literal meaning of ‘humanitarian’, “concerned with or seeking to promote human welfare”. Thus, International Humanitarian Law, or jus in bello (right in war) were basically brought up to limit the harsh effects of armed conflicts. It is also known as law of war or law of armed conflict. And is independent from the question of justification of war covered by jus ad bellum (right to battle). Geneva Convention and Additional Protocols Some historians find the roots of International Humanitarian Law dig deep down in history and at the other point, few believe in the contribution of Henry Dunant. After witnessing the war of Solferino, in 1859, he created the International Committee of the Red Cross (ICRC) in Geneva, Switzerland. He also wrote a book, A Memory of Solferino, in 1862 on the horrors of the war. ICRC led the way towards the Geneva Convention. Geneva Convention comprises four treaties and three Additional Protocols. The first Convention was held in 1864. On August 22, 1864, the Swiss Government welcomed all European countries’ governments and the USA, Brazil and Mexico to attend a diplomatic conference. Sixteen countries sent their delegates to Geneva. The first Geneva Convention was adopted for “the Amelioration of the Condition of the Wounded n the Field”, to which 12 states and kingdoms signed. For these accomplishments Henry Dunant became co recipient of the first Nobel Peace Prize in 1901. The second Geneva Convention “for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea” was adopted July 6, 1906. It replaced the Hague Convention (X) of 1907. Following the second, third Geneva Convention “relative to the Treatment of Prisoners of War” was adopted after witnessing the deficiency of protection of prisoners after World War 1, on July 27 1929. The fourth and Last Geneva Convention “relative to the Protection of Civilian Persons in Time of War” in 1949. It was the first to deal with the protection of civilians as its subject matter. As there were some provisions contained in Hague Convention 1899 and 1907, Article 154 of Fourth Geneva Convention is Supplementary to those provisions. After years of hard work and determination these conventions were adopted and created but as we know change is the essence of life. With developments in all corners of the world the intensity and circumstances of war also changed with time. Now, the protection of civilians was more important than ever. Considering the changes two Additional Protocols were adopted in 1977 which extended the ambit of 1949 Geneva Convention. A third Additional Protocol was adopted in 2005 which added a protective sign for medical services, the Red Crystal, as an alternative to Red Cross and Red Crescent for countries that find them objectionable. As of now 196 countries are signatories to these Geneva Convention and Additional Protocols. India gave its ratification to the Geneva Convention in 1950. It is even a signatory to Additional Protocol III but has not ratified Additional Protocol I and II. It is the 5th country in the world and the first country in the region to implement the legislations of 1949 Geneva Convention. International Armed Conflicts and IHL Wars have not born over time; they were there since the existence of humans. Every culture or country had their own laws or rather principles regarding their warfare. It was until these revolutionary laws which came into being that we had some universal rules. Taking a remarkable step always takes determination and patience. There were many setbacks in the attempt of limiting wars. The two conventions, Geneva and Hague, developed closely to each other. Sometimes there were overlaps but at the end they did compliment each other. In simpler words where the Geneva Convention deals with protection of humans directly the Hague Conventions limits the kinds of weapons that can be used in wars. The Hague Convention, Geneva Convention and Additional Protocols just make their existence felt by making others’ important. The agreements which prohibit use of certain weapons were as follows: ●Protection of Cultural Property in the Event of Armed Conflict. ●Biological Weapon Convention, 1972. ●Conventional Weapons Convention and its five protocols ●Chemical Weapons Convention, 1993 ●Ottawa Convention on anti-personnel mine, 1997 ●Optional Protocol to the Convention on the Rights of the Child, 2000 International Humanitarian Law covers two mains areas which are: ●Protection of those who are not, or no longer, taking part in fighting; ●Restriction on the means of warfare-in particular weapons-and the methods of warfare such as military tactics. IHL stands in order to protect people who do not take part in war such as civilians, religious military personnel and medical aid providers. It also protects people who ceased to take part in the war such as wounded soldiers, shipwrecked and sick combatants and prisoners of war. IHL believes that such categories of people are entitled to respect for their lives and physical and mental integrity. They too deserve to be treated in a humane manner and have no adverse steps taken on them. Also, it is forbidden to kill or wound an enemy who has surrendered himself or is unable to fight. They believe that the wounded should be cared regardless from which party they belong. There are rules laid down in IHL which govern the conditions in which prisoners of war are detained and civilians are to be treated. They deserve food, shelter and medical care and the right to share messages with their families. There are proper symbols which are used to identify protected people such as the Red Cross, Red Crescent, Red Crystal and the symbols identifying cultural property and civil defense facilities. IHL also prohibits all means and methods of warfare which: ●Fails to discriminate between active and passive participants in the war. ●Cause superfluous injury or unnecessary suffering ●Cause severe or long-term damage to the environment. This led them to ban many weapons such as exploding bullets, chemical and biological weapons and anti-personnel mines. It is unfortunate that despite years of struggle and hard work there are hundreds of instances of violation IHL. Non-International Armed Conflicts and IHL IHL only applies to armed conflicts and does not cover internal conflicts such as isolated acts of violence. They come into the picture only when conflict has started and equally applies on both the parties totally disregarding the fact who started it. Now IHL distinguishes between International and Non-International armed conflicts such as ●In which two or more than two States are involved are regarded as international Armed conflicts; ●And those restricted to the territory of a single State involving either regular armed forces or armed groups fighting each other are considered as non-international armed conflicts. There are many rules which apply on international armed conflicts but a limited range of rules apply on the Non-international armed conflicts which are provided in Article 3 common to the four Geneva Conventions as well as in Additional Protocols II. Humanitarian law and Human rights are two different topics and it is important to understand this difference. Unlike humanitarian law, human rights only apply at the time of peacetime and many of its provisions may be suspended during an armed conflict. International Humanitarian Law and Factors linked with Armed conflict IHL and Terrorism IHL do no give a definition of “terrorism”, but prohibits most of the actions which would be considered as “terrorist”. Certain acts which are committed in peacetime if they are committed during an armed conflict would be considered as “terrorist”. Such actions include, indiscriminate acts of violence, deliberate attacks against civilians and civilian objects, the use of “human shields”, attacks on places of worship and hostage taking. As IHL does not apply until there is armed conflict, it does not address the manner in which States respond to terrorists’ acts committed in peacetime. Such acts fall under the ambit of internal and domestic laws, precisely human rights laws. In case of any terrorist act during armed conflict the rules of IHL apply on both the parties. In order to avoid helpless circumstances IHL involves the parliamentarians in the course of action. There are some rules and precautionary measures laid down by IHL which are the duty of parliamentarians to bring in legislation of their country. It is their duty to ensure that their country does not involve itself, or promote, or abet someone, in terrorist activities. They should bring in anti-terrorism legislations and promote more and more humanitarian activities. IHL and Sexual violence during armed conflicts One of the harsh effects of armed conflicts are sexual violence. Rape and other forms of sexual violence prevail as a devastating and unfortunate phenomenon with consequences for victims-women, men, girls and boys-as well as their families and whole communities. Sexual violence includes rape, sexual slavery, forced prostitution, forced pregnancies, forced sterilization and any other form of sexual violence of a comparable gravity. Such activities are prohibited under treaty law, fourth Geneva Convention, as well as Additional Protocols I and II and customary law applicable in both international and non-international armed conflict. Maximum of these activities amounts to torture and thus makes it a part of violation of international laws. Critical Analysis The trail of activities which led to the formation of International Humanitarian Law is devastating and historic. It is evident that IHL has constantly been revised and developed only in order to save some innocent lives. Still, the compliance with these revolutionary laws seems to be difficult for different states. With development of time, we have stopped developing as humans. Even after owing responsibility towards such a significant set of rules somehow the cruelty inside us can be shown. Gradually attacks on others’ culture, civilians and beliefs have touched the peeks. Even after banning lots of weapons and harsh activities people somehow find loopholes to hide into. There are few measures which can be taken in order to promote the importance and existence of IHL; ●Educate people about IHL ●Translating IHL into national languages ●Adopting the provisions of IHL in domestic laws and forming statutory provisions ●Finding IHL space in military manuals. ●Preventing war crimes and adequate punishment for those who commit ●Effective sanctions for IHL violations There is no clearly stated punishment by IHL but some provisions, according to which States have to take actions and prosecute and punish war crimes such as enacting national legislation in compliance with IHL, prosecution of offenders before their own courts of extradite them for trial in another state, military commanders must prevent grave breaches of IHL and States shall assist each other during proceedings related to grave breaches and other war crimes. Conclusion IHL agendas and ideas are well structured but have sadly remained only on paper. Lack of punishment for the offenders, the compliance with IHL is very linnet. On the other hand, it is remarkable how IHL has come a long way and is here to stay. IHL is the only hope and weapon, at the same time, for people who are extremely affected by wars regardless of their participation. It is sad that it has already taken and seems nowhere soon to teach humans to behave humanely. Authored by Rudrakshi Sharma





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