Law is a term that is asscoiated with a number of fields. Every activity of our lives, in one form or the other is connected with law. Law is a basic need for an orderly society. However, it must be astonishning to know that law is applicable even in the war field.
It is difficult to comprehend as to how rules and regulations can be followed when nations are embroiled in a state of war. But the reality is, law indeed regulates warfare.
The terms "international humanitarian law" (henceforth IHL), "law of armed conflict", and "law of war" maybe used synonymously.
IHL is a branch of public international law that consists of rules that are applicable in times of armed conflict and those for humanitarian reasons seek to protect persons who are not or no longer directy participating in the hostilities and also to restrict meas/methods of warfare.
IHL consists of international treaty or customary rules.
Origins of IHL
The genesis of the law of warfare was the Battle of Solferino in 1859 when two individuals namely Swiss businessman Henry Dunant and a Swiss Army Officer, Guillaume-Henri Dufour while travelling in Italy were appalled by the consequences of the battle. Dunant subsequently penned his exepriences of the war and what he saw in a book entitled A Memory of Solferino and was actively supported by Dufour.
They founded the International Committee of the Red Cross (ICRC) in 1876 that is the world's largest NGO today. Their main aim was to extend protection to the wounded and the sick in the battlefield and those caring for them.
The 1864 Convention, held at Geneva, was instrumental in bringing forth the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, that led to the birth of modern IHL. This Convention incorporated all the prevailing customs of war protecting such groups of people.
The Basic Rules of IHL
The three basic rules that govern the conduct of hostilities by States are those of disctinction, proportionality and precautions. These rules are also part of Customary IHL.
IHL is applicable to all belligerents irrespective of party affiliation otherwise every party would claim to be a victim of aggression.
Parties to a conflict must at all times distinguish between combatants and civilians i.e. irrespective of the side to which they belong, civilians as well as civilian property must always be spared. This is known as the principle of distinction.
Attacks must solely be made against military objectives that include the military personnel actively fighting and their hideouts. However, a surrendered/injured military personnel must not be attacked. Also, medical attendants and vehicles bearing the ICRC symbol must be spared.
Even prisoners of war must not be tortured and when in captivity of their adversaries, they are to be treated with dignity and must be allowed to exhange views with their families and receive aid.
It can be thus stated that the main aim of IHL is to establish a balance between military necessity and humanity. In this regard, military objectives may be defined as objects that by their nature, location, purpose or use make an effective contribution to military action. And the destruction of which offers a definite military advantage. Example: establishments, buildings or positions where enemy soldiers and their armaments are stored.
Moreover, there is a restriction on the mode of warfare. A state of war does not entail the right to use whatever means/mode of warfare the belligerents desire. This is to ensure that there is no superflous injury or unnecessary suffering. This requires that proportional force must be used. Only force necessary to achieve the legitimate purpose of a conflict i.e. the complete/partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources must be resorted to. For example, an attack with missiles must not be responded with a nuclear attack.
In this respect, use of weapons like anti-personnel mines, cluster munitions (a bomb, shell, rocket or missile that releases a large number of small explosive submuinitions), chemical and biological weapons. However, the use of legality of the use of nuclear wepaons is mired in ambiguity.
The International Court of Justice defined "unnecessary suffering" as "harm greater than that unavoidable to achieve legitimate military objectives." For instance, the use of torture like blinding eyes with lasers, is prohibited because it causes unnecessary suffering.
The principle of humanity entails that military objective sought to be achieved must be done so with the minimum expenditure on lives and resources. At every point, belliegernts must take constant care to spare the lives of civilians and civilian objects and even when attacking the military personnel or their objectives, only that much force must be used against them which is necessary to make them submit to the war. Use of force against each and everything belonging to the adversary is against the rules. For instance, attacking cultural property of the opposite party.
Jus Ad Bellum and Jus In Bello
Article 2(4) of the United Nations Charter prohibits States to use or the threat to use force against other States. However, Article 51 of the Charter provides an exception that, in the event of an armed attack, States can use force in self-defence. Jus Ad Bellum refers to the conditions under which States may resort to war or to the use of armed force.
Jus In Bello regulates the conduct of parties who are already embroiled in armed conflict.
Customary Law has made tremendous contribution in the field of IHL apart from treaties being adopted by States. Customary Law is formed when State Practice becomes widespread, frequent and uniform to attain the level of a custom.
Some provisions in the Hague and Geneva Conventions were reflections of exisitng customary law, whereas others have developed into customary law. They are therefore binding on all States regardless of ratification.
There are certain general principles of law, called jus cogens, recognised by IHL from which no derogation is allowed, like torture and genocide.
Although the original Geneval Convention of 1864 is considred to have been the starting point of contemporary IHL, however, rules governing warfare goes back to ages. Many ancient texts like The Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary.
Also, for soldiers fighting on the Union side of the Americal Civil War was a text called the Lieber Code of 1863, which was the first attempt to codify existing laws and customs of war.
The 1864 Convention has evolved to incorporate the various changes like advances in weapons technology or changes in the nature of armed conflict and subsequently Conventions based on these changes have been adopted.
Some of them are: The 1899 Hague Convention respecting the Laws and Customs of War on Land, the 1925 Geneva Convention for the Prohibition of the Use in War of Asphyxiating, Posionous and Other Gases, and of Bacteriological Methods of Warfare, 1954 Hague Convention for the Protection of Cultural Property, 1993 Convention on Chemical Weapons,1989 Convention on the Rights of Child, and many more.
To codify the basic principles of IHL, the Geneva Conventions of 1949 were adopted and subsequently their two Additional Protocols in 1977, which are the "cornerstone" of IHL. There are four Geneva Conventions namely:
(i) Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
(ii) Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea
(iii) Treatment of Prisoners of War
(iv) Protection of Civilian Persons in Time of War
The first three Conventions were the product of exisitng treaties on the same subjects and the fourth one was new and was the outcome of the heavy loss of civilian lives during the Second World War. Additional Protocol I governs international armed conflict and Additional Protocol II governs non-international armed conflict.
Applicability of IHL
It must be seen that IHL rules are applicable in only two siatuations: one, in international armed conflicts (IAC) and two, in non-international armed-conflicts (NIAC). Thus, what rules will be applicable is dependent on this classification of armed conflict.
An IAC occurs, as the name suggest when one or more States resort to the use of force against another State/or an international organization. This also include: wars of national liberation against foreign occupation or against racist regimes. It is to be noted that IHL will apply even though one of the States does not recognize the state of war.
NIAC, on the other hand, occurs when conflicts happen between armed forces of States and organized non-State armed groups, or between such groups. However, not every confrontation or use of force amounts to NIAC. To ascribe a conflict as NIAC, they must reach a certain level of intensity and the groups involved must be sufficiently organized.
There is another kind of armed conflict which is somewhat a new phenomenon called "internationalized armed conflict." This occurs when different groups are fighting internally bt are supported by different States. Example: the conflict in Democratic Republic of Congo in 1998 when the forced from States like Rwanda, Angola, Zimbabwe and Uganda intervened to support various groups in DRC.
Thus, for IHL to apply it is necessary for an armed conflict to have arisen. In cases of internal disturbances and tensions, that disrupt public order, IHL is not applicable, as they do not amount to an armed conflict. Such cases are governed by human rights law and domestic legislation.
But the problem here is, States are often reluctant to recognize a situation as an armed conflict for certain political reasons. And thus, IHL serves no purpose unless States have political will to implement it. A State can say that a partciular conflict does not meet the threshold of armed conflict and thus no IHL rules will apply.