What is Humanitarian Law?

What is  Humanitarian law?  

By Christopher Beaumont

Karen Parker is the chief delegate to the United Nations on behalf of the Humanitarian Law Project (IHLP).  For the past 15 years, she has investigated humanitarian and human rights law violations around the globe,  and assisted indigenous human rights workers in bringing their concerns before the U.N.  In 1983, she pioneered the groundbreaking international law defense of Central American refugees and sanctuary workers arrested for aiding them.  She recently authored a detailed report on the Indian occupation of Kashmir, and co-authored an article on the legal basis for compensation of nearly 200,000 girls and women raped as part of Japanís World War II program of Comfort Womenî.

Introduction

International humanitarian law is the law of armed conflict or law of war and their effects. The goal of international humanitarian law is to limit the effects of war on people and property and to protect particularly vulnerable persons.

States have always been limited in the ways in which they conduct armed conflicts, from the adherence to national laws and bilateral treaties, to the observance of time-honored customary rules. However, throughout history these limitations on warfare varied greatly among conflicts and were ultimately dependant on time, place, and the countries involved. Not until the 19th century was there a successfully effort to create a set of internationally recognized laws governing the conduct and treatment of persons in warfare.

In the mid-1850s, Henri Dunant – founder of the International Red Cross – helped champion the first universally applicable codification of international humanitarian law: the Geneva Convention of 1864. From these roots, international humanitarian law evolved over the course of a century and a half. The Hague Conventions of 1899 and 1904 limited the means by which belligerent states could conduct warfare.

Many of the international treaties on armed conflict were made in response to the many new methods of warfare. World War I (1914-1918) witnessed the first large-scale use of poison, aerial bombardments and capture of prisoners of war. World War II (1939-1945) saw civilians and military personnel killed in equal numbers.

The Charter of the United Nations (1945) stipulates that the threat or use of force against other states is unlawful, except in the case of self-desfense. Following World War II, the Geneva Conventions of 1949, as well as its two Additional Protocols of 1977, further limited the means of warfare and provided protections to non-combatants civilians, and prisoners of war. In the aftermath of the atrocities of the Holocaust, the Genocide Convention of 1948 outlawed acts that were carried out with the intention of destroying a particular group. In addition to these conventions, international humanitarian law has been developed and refined through several statutes and precedents laid down by international tribunals set up to try war criminals, as well as advisory opinions the International Court of Justice.

This chapter will cover international humanitarian law (IHL), the binding rules and customs that govern armed conflict between nations, civil war combatants, and conflicts among states and non-state belligerents. Traditionally known jus in bello, the law of war, or law of armed conflict, the term international humanitarian law has gained currency since the early 1960s. The two principal branches of IHL are “Hague Law,” involving the regulation of weaponry and the selection of military targets, and “Geneva Law,” covering the treatment of POWs, detainees, civilians, and humanitarian aid workers. IHL sets limits on the use of force, providing special rules for land, aerial, and naval warfare. The justification for and legality of commencing hostilities is governed by jus ad bellum principles, which lie outside the scope of this chapter. IHL addresses both the conduct of armed forces military and the protection of non-combatants. Although historically restricted to international conflicts, since the end of World War II, IHL increasingly applies to non-international conflicts. Nonetheless, the classification of armed conflicts remains important because different rules apply to international and non-international conflicts. Despite being a discreet subject of public international law, IHL also intersects with human rights law and international criminal law. As the nature of warfare and weapons change, IHL will develop stronger ties to human rights law and other branches of international law.
The broad nature and long history of IHL mean that there are many sources and examples which cannot be covered by this chapter. Researching IHL involves multiple issues and it is important to keep in mind that the nature of IHL has changed over time and continues to evolve. This guide covers the basic materials and concepts, but the researcher is advised to look beyond the basics when researching IHL. Due to the complex nature of IHL, no one source is likely to provide all the information needed. For an introduction to IHL see.

According to Hans-Peter Gasser, international humanitarian law (IHL) can be defined as the whole of the international conventional or customary rules, which are specifically intended to regulate humanitarian problems arising directly from both international or non international armed conflicts, and which restrict, for humanitarian reasons, the right of parties to the conflict to use means and methods of warfare of their choice and to protect people and objects affected by the conflict1. This theoretical definition specifies the situations covered by IHL, i.e. armed conflicts of an international character or not of an international character. It also describes, albeit superficially, the contents of this body of norms by examining the traditional distinction between the “Geneva law”, namely the rules which tend to ensure the safeguard of people under the power of the enemy, and the “Hague law” which regulates the rights and duties of the belligerents with respect to the control of military operations and limits the choice of means for harming the enemy. Since the adoption of the two Additional Protocols to the Geneva Conventions of 1977, and a partial fusion of “Geneva law” and “The Hague law”, one often states that this practical distinction has now been surpassed2.

For the purposes of the Competition, it is not essential to know in detail the historical evolution of IHL as herein defined. Nonetheless, at a minimum, a general knowledge of this evolution can be extremely useful, in order to comprehend the context in which the various instruments make up this corpus iuris.

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.

Fundamental principles of humanitarian law ,International humanitarian law aims to limit the suffering caused by war by forcing parties engaged in a conflict to:

  engage in limited methods and means of warfare;

  differentiate between civilian population and combatants, and work to spare civilian population and property;

  abstain from harming or killing an adversary who surrenders or who can no longer take part in the fighting;

  abstain from physically or mentally torturing or performing cruel punishments on adversaries.

Rights at Stake:

Humanitarian law is the branch of public international law that comprises the rules, which, in times of armed conflict, seek to (i) protect persons who are not or are no longer taking part in the hostilities, (ii) restrict the methods and means of warfare employed, and (iii) resolve matters of humanitarian concern resulting from war.

The term “humanitarian” is often used in everyday language in a very broad sense, and can be confused with the term “human rights.” Although both are concerned with the protection of the individual, the two bodies of law apply to different circumstances and possess slightly different objectives. The main distinction between the two bodies of law is that humanitarian law applies to situations of armed conflict, while human rights protect the individual in times of both war and peace. Humanitarian law aims to limit the suffering caused by war by regulating the way in which military operations are conducted.

 Types of armed conflict

International armed conflicts are conflicts between states. The four 1949 Geneva Conventions and Protocol I deal extensively with the humanitarian issues raised by such conflicts. The whole body of law on prisoners of war, their status and their treatment is geared to wars between States (Third Convention). The Fourth Convention states inter alia the rights and duties of an occupying power, i.e. a state whose armed forces control part or all of the territory of another state. Protocol I deals exclusively with international armed conflicts.

Under Protocol I of 8 June 1977, wars of national liberation must also be treated as conflicts of an international character. A war of national liberation is a conflict in which a people is fighting against a colonial power, in the exercise of its right of self- determination. Whereas the concept of the right of self-determination is today well accepted by the international community, the conclusions to be drawn from that right for the purposes of humanitarian law and, in particular, its application to specific conflict situations are still somewhat controversial.

The majority of today’s armed conflicts take place within the territory of a state: they are conflicts of a non-international character. A common feature of many such internal armed conflicts is the intervention of armed forces of another state, supporting the government or the insurgents.

The substantive rules of humanitarian law governing non-international armed conflicts are much simpler than their counterparts governing international conflicts. They are derived from one main source, namely article 3 common to the four Geneva Conventions of 1949, which obliges the parties to an internal conflict to respect some basic principles of humanitarian behaviour already mentioned above. Article 3 is binding not only on governments but also on insurgents, without, however, conferring any special status upon them.

Additional Protocol II of 1977 supplements Article 3 common to the Geneva Conventions with a number of more specific provisions. This is a welcome contribution to the strengthening of humanitarian protection in situations of internal armed conflict. Protocol II has, however, a narrower scope of application than common Article 3. It applies only if the insurgent party controls part of the national territory.

HISTORY:

In the 1990s, humanitarian issues have played a historically unprecedented role in international politics. They have been prominent mainly in relation to armed conflicts and the use of armed force, rather than other types of disaster whether natural or man-made. They have been frequently cited by States and international organizations as a basis for action regarding both civil and international wars. The experience of this expanded and largely unforeseen role raises questions for theorists and practitioners alike. It poses an intellectual challenge for those who believe that international politics is essentially about States’ pursuit of power on the basis of interest; it also raises questions for those who believe that international humanitarian law and action can have a major impact, not just on particular conflicts and their effects, but on international politics generally.

There is nothing new about humanitarian issues featuring significantly in the conduct of international politics. In earlier decades of this century they played an important part in shaping popular and governmental reactions in many countries to such events as the two World Wars, the Spanish Civil War, and the Vietnam War. However, the way in which , in the 1990s, they have repeatedly had a central role, in relation to a rapid succession of crises from the Kurdish areas of Iraq in 1991 to Kosovo in 1998, has no obvious parallel in any previous period. Humanitarian issues may now be at the beginning of a phase of retrenchment, but they are not likely to disappear.

This paper does not attempt to provide an overall balance sheet of the considerable achievements and many failures of humanitarian approaches in the 1990s. Its purposes are more limited. The first section briefly discusses the changed role of international humanitarian law and action since 1989. The second explores the factors, some of which are rooted in considerations of power and interest, that have led to this increased role. The third goes on to outline six key areas in which the emphasis on humanitarian issues has resulted in innovations, all involving the United Nations. The final section suggests conclusions arising from experiences of the 1990s.

 The changed role of humanitarian issues since 1989

The events of the 1990s have put into prominence both of the interconnected streams of international humanitarianism that are applicable to the problems posed by armed force: (1) the law of war, especially those aspects which seek to protect the victims of armed conflict (international humanitarian law); and (2) humanitarian action in the form of assistance to people in need during an emergency situation. Both these streams are related to, but in some ways distinct from, law and action in the field of human rights, not directly addressed here.

 Law of war

Since 1990 there has been a heightened interest worldwide in the law of armed confli ct, also known as international humanitarian law. A number of factors have contributed to this development: (1) The law of war was seen to have played a positive role in the 1991 Gulf War. Although its application was not free from controversy, it did provide useful guidelines for the conduct of coalition military action. (2) Several conflicts, and the reporting of them, have stimulated widespread public awareness of war crimes. (3) There has been growing concern about the huge extent of pointless destruction caused by anti-personnel mines.

The considerable attention paid to law of war issues by the anti-Iraq coalition in the conflict over Kuwait in 1990-91 was evidence not only of the salience of these issues, but also of the compatibility of humanitarian law with military effectiveness. Indeed, attention to aspects of the law governing armed conflicts probably made a positive overall contribution to the coalition’s choice of methods and tactics, and contributed to the revival of serious interest in this law among the armed forces of several coalition States.

At the end of the 1990s the overall picture of State participation in existing treaties on the law of war is far from bleak. Adherence to the Protocol I of 1977 (on international armed conflicts) additional to the 1949 Geneva Conventions illustrates the point. On 1 July 1988 there were 76 States Parties. At the end of 1998 there were 152, including all NATO members except France (which is considering ratification), Turkey and the USA.

In addition, between 1994 and 1997 four new agreements relating to the law of war were concluded which, having passed the necessary threshold number of parties, have entered into force. The first, not exactly part of the law of war as such but with an important bearing on the conduct of hostilities, is the 1994 UN Convention on the Safety of United Nations and Associated Personnel. This treaty was concluded in haste by the UN because of t he lack of respect for peace-keepers and other international workers in a number of conflicts in the immediately preceding years, including in the former Yugoslavia. The very need for this treaty thus casts a sombre light on the role of humanitarian issues in the 1990s. Two new Protocols annexed to the 1980 Convention on Certain Conventional Weapons were concluded, addressing the use of blinding laser weapons (Protocol IV, 1995), and mines, booby-traps and other devices (Protocol II as amended, 1996). The latter was rapidly followed by the fourth of the new treaties, the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.

On some issues, the 1990s have seen remarkable developments in the form, not of new treaties, but rather of authoritative expositions of existing law. Two striking examples, both drawing on a wide range of sources and relating them to today’s circumstances, are the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), and the ICRC/UN General Assembly Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conflict (1994). In several areas, drawing up authoritative expositions of this type is more useful than trying to negotiate completely new agreements.

However, the main developments of the 1990s have been the result of a new international emphasis on implementation: on actions to ensure that the law is observed and violations are punished. In the 1990s, as in earlier periods, implementation has been different in practice from what is envisaged in the conventions. Trials for “grave breaches” under the 1949 Geneva Conventions have remained a rarity, and the International Fact-Finding Commission set up in 1991/92 under the terms of Additional Protocol I has not been asked to do anything. On the other hand, the UN Security Council has established the International Criminal Trib unals for the former Yugoslavia (1993) and Rwanda (1994). Although they have encountered many difficulties, especially in arresting suspects and in getting witnesses to testify, they are evidence of a growing seriousness in the international community about implementing the law of war. Finally, 1998 saw the adoption of the Statute for the International Criminal Court.

An issue of particular concern is the policy of the United States. Despite the experiences of 1990-91 and the care with which it has approached such tasks as the writing of military manuals and rules of engagement, the USA is not formally a participant in most of the main law of war agreements of recent decades. In particular, the USA is not a party to Additional Protocol I; the 1995 Protocol on laser weapons; the 1996 Protocol on anti-personnel mines; the 1997 Ottawa Convention on anti-personnel landmines; and the 1998 Statute of the International Criminal Court. Although a non-party, it takes at least some of these accords more seriously than some States that are parties. The reasons for US non-participation go far beyond the obduracy of one single aged Senator, and call for careful analysis rather than uncomprehending condemnation.

Humanitarian action  

The striking increase in the work performed by humanitarian bodies in relation to armed conflicts has been reflected in the increases in the budgets and field activities of the Office of the UN High Commissioner for Refugees (UNHCR), the World Food Programme (WFP), the European Community Humanitarian Office (ECHO), the International Committee of the Red Cross (ICRC), and countless NGOs; and in the increased involvement of UN and other peace-keeping forces in humanitarian action.

The expansion of UNHCR expenditure from the mid-1970s illustrates the point. The agency’s budget, which depends primarily on voluntary donatio ns by States, grew from 69 million US dollars in 1975 to $570 m. in 1989, $1,307 m. in 1993, to a peak of $1,430 m. in 1996. Since then there has been significant retrenchment: expenditure in 1997 was $1,220 m., and the figures for 1998 and 1999 seem certain to be under $1,000 m. Large staff cuts are under way. Nonetheless, the huge expansion of the budget up to 1996, and its maintenance thereafter at a level far higher than in earlier decades, are evidence that States have been willing to put serious resources into taking action about at least some refugee problems.

What is International Humanitarian Law?

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit theeffects 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 practise 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.

History of the Geneva Conventions and the  Protocols.

KP:  The Geneva Conventions arose in response to the atrocities of war.  The first Geneva Convention was developed in 1864.  It called on the warring parties to respect the right of medical personnel assisting soldiers in the field.   The 1949 Conventions, which are the current rules, were a response to the atrocities of WW2.  The  four conventions protect combatants in the field, combatants at sea, prisoners of war and civilians.   The protection for civilians  includes the provision of humanitarian aid to noncombatants and wounded combatants.
The Protocol Additionals, added in 1977, are considered expansions to the 1949 Conventions, rather than new documents.  They were in part an answer to the atrocities of the Vietnam War and in part a response to the  long years of apartheid and national liberation struggles in Africa.    The first protocol expands international armed conflict rules to  govern wars of self-determination and wars against racist regimes.  The second protocol expands the protections in civil war or what we sometimes call ìinternal armed conflict.”

Issues of human rights and humanitarian law
KP:  The U.S. unfortunately  is an active player only in a certain narrow area of law, and  tries to discourage or discard any favorable action in other areas of human rights law.  For instance, the US has a position against the recognition of economic, social and cultural rights.  So if issues  such as the right to housing or social security are raised by NGOís or governments, the US always objects or tries to block action on it.  This is embarrassing to me as an American.  Within the U.N. system there is no question about the reality and viability of those rights.

Unfortunately, in the area of humanitarian law, the US still wants to favor its side in an armed conflict and consider the other side terrorists or bad  guys.  For instance, the U.S. fought  for a long time not to have the protection for POWís and other standards of  humanitarian law raised in resolutions on El Salvador.  Itís rather sad when oneís own country, which should be respecting the Geneva Conventions in all circumstances, picks and chooses based on its political efficacy.

 Is there any real force behind the United Nations in its judgments with regard to humanitarian law?  And what can we do to put some teeth into the decisions coming out of its various?

KP:  Well, I know many Americans are aware of the fact that the U.S. flouted the World Court in the Nicaraguan case, which was decided against the U.S.  In spite of that, the U.S. did eventually have to withdraw its support for the contras.  Tribunals have been established to review war crimes in the former Yugoslavia and in Rwanda.  This is an enormous step forward, and if it wasn’t for the ICJ opinion in the Nicaraguan case, the international community may not have been ready for this.
At the present time, however, there are also some situations — Tibet, Kashmir and Burma come to mind, where the resolution of the international community falls short, where  political efficacies  are still overriding the humanitarian law dimension.  This may not be possible for much longer, however, as the tribunals evolve,  and more and more people say well, if thereís a tribunal in Yugoslavia, what do we do in Kashmir, where there are 600,000 Indian troops carrying out a very oppressive war against the Kashmiri people with the same kinds of violations, or what about the fact that the government of China is still forcibly occupying Tibet and has since 1950?

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.

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 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.

Humanitarian Law and Human Rights Law

Many individuals perform humanitarian acts every single day, but can we depend on individual awareness, compassion and courage alone to protect people?

The answer is “No”. Throughout the 20th Century, the field of international law evolved considerably, particularly around human rights and humanitarian law, to guarantee protection and assistance. The challenges are to educate citizens, governments, and military forces regarding these laws—and to find better ways to enforce them.

Both human rights law and humanitarian law exist to protect people.