International Humanitarian Law

What is International Humanitarian Law?

International humanitarian law (IHL), also known as the law of war or the law of armed conflict, is the legal framework applicable to situations of armed conflict and occupation. IHL aims to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting the means and methods of warfare employed.

The core purpose of IHL is to preserve human dignity and humanity in times of war. It seeks to accomplish this by:

• Limiting the right of parties to a conflict to use methods and means of warfare of their choice.
• Protecting persons who are not, or are no longer, taking part in the hostilities.
• Restricting the effects of armed conflict on the natural environment.

The rules of IHL regulate the conduct of hostilities and impose limits on the use of weapons. They also provide protections for vulnerable groups like civilians, the wounded and sick, POWs, and medical and religious personnel. By balancing military necessity against humanitarian concerns, IHL aims to restrict the brutality of war while allowing belligerents the ability to achieve legitimate military goals.

History & Development of International Humanitarian Law

International humanitarian law (IHL) has evolved over many centuries in an effort to humanize warfare and limit suffering during armed conflict. Early rules protecting prisoners of war, the wounded and sick can be traced back thousands of years in various cultures. But it was not until the mid-19th century that the first formal agreements were adopted.

The first Geneva Convention was concluded in 1864, establishing basic protections for wounded and sick soldiers following the Battle of Solferino in 1859. The horrors witnessed during that battle led Henry Dunant to advocate for an international treaty to provide care for those wounded in war.

Further protocols were added in the late 19th and early 20th centuries, extending protections to prisoners of war and civilians. The Hague Conventions of 1899 and 1907 also contained provisions governing the means and methods of warfare, such as prohibitions on certain types of weapons.

Following the devastation of World War I and World War II, the four Geneva Conventions of 1949 significantly expanded protections for victims of war. Nearly every state in the world has ratified these conventions. Two Additional Protocols were added in 1977, specifically addressing the treatment of victims in civil wars and wars of national liberation.

Throughout the 20th century, IHL continued to evolve in response to changing technology and the changing nature of warfare. New treaties prohibited the use of certain weapons such as chemical and biological agents, landmines, and blinding lasers. The scope of IHL also expanded from just governing relations between states, to regulating civil wars within states.

Today, IHL continues to face new challenges in regulating cyber warfare, autonomous weapons, and armed conflicts involving non-state actors. The core purpose remains limiting suffering in war, but the complexities of modern technology and asymmetric warfare require constant re-evaluation of how these goals can be achieved.

Sources of International Humanitarian Law

International humanitarian law is primarily found in the Geneva Conventions and their Additional Protocols. Some key sources include:

Geneva Conventions

• The Four Geneva Conventions of 1949 are the main treaties of international humanitarian law. They protect wounded combatants, prisoners of war, and civilians in wartime.
• Geneva Convention I protects wounded and sick soldiers on land during war.
• Geneva Convention II protects wounded, sick and shipwrecked military personnel at sea during war.
• Geneva Convention III relates to prisoners of war.
• Geneva Convention IV defines protections for civilians during wartime.

Additional Protocols

• Additional Protocol I (1977) relates to the protection of victims of international armed conflicts. This Protocol addresses issues not covered by the 1949 Conventions, such as targeting military objects and the use of certain weapons.
• Additional Protocol II (1977) extends human rights protections to victims of non-international armed conflicts such as civil wars.

Weapons and Tactics Conventions

• The Hague Conventions of 1899 and 1907 sought to define laws of war and restrict the means and tactics of warfare. This includes prohibitions on certain weapons.
• More recent weapons conventions prohibit biological weapons, chemical weapons, anti-personnel land mines, cluster munitions, and blinding laser weapons.

Cultural Property Conventions

• The 1954 Hague Convention for the Protection of Cultural Property protects important cultural sites and artifacts during armed conflict. Its protocols provide enhanced protections.
• The 1970 UNESCO Convention prohibits and prevents the illicit trafficking of cultural property during peacetime and wartime.

Scope of International Humanitarian Law

International humanitarian law covers two main areas: the protection of those who are not, or who are no longer, taking part in fighting, and restrictions on the means and methods of warfare.

Protection of Civilians and Non-Combatants

A core aim of international humanitarian law is to protect civilians and non-combatants in times of armed conflict. Key protections include:

• Civilians may never be deliberately targeted unless they are directly participating in hostilities.
• Parties to a conflict must distinguish between civilians and combatants at all times. Attacks may only be directed at combatants and military objectives.
• Certain persons are afforded special protections, including medical and religious personnel, humanitarian workers, journalists, and children.
• Torture, collective punishment, hostage taking, and executions without trial are forbidden.
• Displacement of civilians should be avoided. If needed, civilians must be allowed voluntary passage to safe areas.

Restrictions on Weapons and Tactics

International humanitarian law places restrictions on the means and methods of warfare. These include:

• Weapons that cause superfluous injury or unnecessary suffering are prohibited, such as poison gases and biological weapons.
• Indiscriminate weapons, like cluster munitions, are restricted.
• Starvation of civilians as a method of warfare is prohibited. Civilian objects and infrastructure essential for survival must be spared.
• Perfidious methods of warfare are forbidden, like improper use of symbols of truce or surrender.
• No military objective can justify causing extensive, long-term environmental damage.

These and other restrictions aim to limit the damage caused by armed conflict and uphold human dignity.

Basic Principles of International Humanitarian Law

International humanitarian law is guided by some basic principles that should be respected in all armed conflicts. These principles aim to balance military necessity against the principles of humanity.

Military Necessity

The principle of military necessity permits measures that are necessary to defeat the enemy and achieve the legitimate purpose of the conflict. This includes the use of force that is indispensable and proportionate to achieving that aim. However, military necessity cannot justify actions that are prohibited under IHL.

Protection of Humanity

IHL emphasizes the protection of those who do not or no longer directly participate in hostilities. This includes civilians, the wounded, the sick, shipwrecked, prisoners of war, and other detainees. They must be treated humanely and cannot be harmed or attacked. Certain weapons that cause superfluous injury or unnecessary suffering are prohibited.

Distinction and Proportionality

The principle of distinction requires parties to a conflict to distinguish between combatants and civilians, as well as between military and civilian objects. Attacks may only target military objectives and combatants. Indiscriminate attacks on civilians or civilian objects are prohibited.

The principle of proportionality stipulates that incidental loss of civilian life and damage to civilian objects should not be excessive in relation to the expected military advantage. All feasible precautions must be taken to avoid civilian casualties.

Fundamental Rules of International Humanitarian Law

International humanitarian law sets out a number of fundamental rules that all parties to an armed conflict must respect. These basic rules aim to limit the effects of war on people and property.

The key fundamental rules of IHL include:

• Rule of Distinction - This requires parties to distinguish between civilians and combatants, as well as between civilian objects and military objectives. Attacks may only target combatants and military objectives, not civilians or civilian objects.
• Rule of Proportionality - Any attack must not cause loss of civilian life or damage to civilian objects that would be excessive compared to the concrete and direct military advantage expected from the attack. Parties must take precautions to avoid and minimize civilian casualties.
• Ban on Indiscriminate Attacks - Attacks which are not directed at a specific military objective, employ a method or means of combat that cannot be directed at a specific military objective, or employ a method or means of combat the effects of which cannot be limited are prohibited. This includes attacks by bombardment that treats distinct military objectives in an area containing civilians or civilian objects as a single military objective.
• Ban on Unnecessary Suffering and Superfluous Injury - It is prohibited to employ weapons, projectiles or materials calculated to cause unnecessary suffering or superfluous injury. Weapons that are indiscriminate or cause excessive harm are banned.
• Protection of Persons Hors de Combat - Anyone who is wounded, sick, shipwrecked, detained, or surrenders is hors de combat and must be treated humanely and protected against murder, torture, corporal punishment and cruel or degrading treatment.
• Protection of Medical and Humanitarian Personnel - Military and civilian medical personnel, as well as humanitarian relief personnel, must be respected and protected. They cannot be attacked or unnecessarily prevented from carrying out their duties.
• Ban on Attack of Civilian Objects - Attacks on civilian objects like homes, schools, hospitals, cultural sites etc. are prohibited unless they become legitimate military objectives.
• Obligation to Search for and Collect the Wounded – After an engagement, the parties must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.

Implementation & Enforcement of International Humanitarian Law

The implementation and enforcement of international humanitarian law (IHL) involves several key players:

Role of States

• States have the primary responsibility to implement and enforce IHL. They must disseminate IHL to their armed forces and incorporate its rules into military doctrine, manuals, and trainings.
• States must enact domestic legislation to prosecute war crimes and other IHL violations. They must search for persons alleged to have committed grave breaches of the Geneva Conventions and bring them before their own courts.
• States have a duty to ensure respect for IHL by others. They can call upon parties to armed conflict to comply with IHL and take lawful countermeasures against violators.

Role of Militaries

• Armed forces must be trained in IHL so they can apply it in combat. Officers have a particular responsibility to prevent and repress IHL violations by their subordinates.
• Militaries must establish legal advisors to provide guidance on applying IHL during military operations. They should institute monitoring mechanisms to ensure compliance.

Role of the International Red Cross and Red Crescent Movement

• The ICRC has a mandate under the Geneva Conventions to monitor compliance with IHL. It can visit prisoners of war and detained civilians, assist civilian populations, and provide medical aid.
• National Red Cross/Red Crescent societies support implementation and dissemination of IHL at the domestic level. They provide humanitarian relief, trace missing persons, and reconnect families separated by conflict.
• The International Red Cross and Red Crescent Movement enjoys a special status to carry out its humanitarian work during armed conflict. All parties must respect and protect its personnel, facilities, and activities.

Contemporary Challenges

International humanitarian law faces several contemporary challenges in regulating modern warfare. Some key issues include:

Civil Wars and Internal Armed Conflicts

Unlike traditional wars between states, the rise of civil wars and internal armed conflicts since World War II has challenged international humanitarian law. These types of conflicts often involve non-state actors like militias, rebels, and terrorists operating amongst civilian populations. IHL principles like distinction and proportionality become more difficult to uphold. Protecting civilians also proves challenging. Additional Protocol II specifically covers internal armed conflicts and tries to strengthen protections. However, implementation and enforcement remain difficult.

New Technologies

Advances in weapons systems and military technology, like armed drones, autonomous weapons, and cyber capabilities, are raising new legal and ethical issues. Can drones conduct targeted killings that comply with IHL norms? Do autonomous weapons violate the principles around necessity and proportionality in attack? How does IHL regulate cyber warfare? The potential humanitarian impacts of new technologies create challenges in applying existing IHL principles and potentially developing new norms.

Cyber Warfare

Cyber warfare involves hacking and disrupting critical civilian infrastructure like power grids, transportation systems, hospitals, and communication networks. Attacks could have devastating impacts on civilians comparable to traditional military strikes. But cyber operations happen in a gray zone that blurs the lines between combatants and civilians, military and civilian infrastructure. IHL rules around targeting, proportionality, and precautions in attack become difficult to interpret and apply. Work is ongoing to determine how IHL norms should regulate cyber warfare, but many challenges remain.

Case Studies

International humanitarian law has been applied in many different conflicts and situations throughout history. Here are some relevant examples:

Vietnam War

The Vietnam War saw significant violations of IHL by all parties involved. The US military’s use of indiscriminate weapons and tactics such as carpet bombing violated principles of distinction and proportionality. North Vietnamese forces were also accused of violating Geneva Convention rules on treatment of prisoners of war.

Rwandan Genocide

The mass killing of Tutsis and moderate Hutus during the Rwandan genocide in 1994 extensively violated IHL. Widespread crimes against humanity and war crimes were committed during the 100-day massacre, including horrific acts against civilians and protected persons.

War in Afghanistan

Following the US invasion of Afghanistan in 2001 after 9/11, concerns were raised over IHL compliance on issues like treatment of Taliban detainees and use of armed drones. US interrogation techniques and detention conditions were questioned under IHL standards.

Syrian Civil War

The ongoing Syrian civil war has witnessed numerous IHL violations by various parties. Flagrant disregard for civilian protections, use of chemical weapons, targeting hospitals and medical personnel, and torture of detainees have occurred amidst the atrocities.

Israeli–Palestinian Conflict

Debates over compliance with IHL principles are common in the enduring Israeli-Palestinian conflict. Issues like settlements in occupied territory, blockades in Gaza, and use of force by both sides have prompted accusations of IHL violations.

The Future of IHL

International humanitarian law continues to face new challenges in the 21st century. Some key areas for possible reform and development:

• Expanding protections for civilians in urban warfare. As conflicts increasingly take place in densely populated cities, IHL protocols may need updating to enhance safeguards for civilians against indiscriminate attacks. Proposals include more stringent precautions for militaries operating in urban areas.
• Strengthening compliance and enforcement. IHL depends on voluntary compliance by states and armed groups. But violations persist, so strengthening global monitoring and accountability measures could help. This could include wider ratification of treaties, national legislation aligned with IHL principles, and capacity building to spread awareness.
• Regulating new technologies. Emerging technologies like cyberwarfare, autonomous weapons systems, and artificial intelligence pose new dilemmas for IHL rules. As the impacts become clearer, nations may pursue new bans or limitations on certain technologies to uphold humanitarian protections.
• Clarifying rules for non-international conflicts. The Geneva Conventions focus more on international conflicts between states. But most contemporary wars are civil wars or non-state conflicts. Updating IHL protocols to address issues like detention, displacement and conduct of hostilities in non-international conflicts could help enhance protections.
• Engaging non-state armed groups. Since non-state actors are major parties in modern conflicts, increasing their awareness of and commitment to IHL principles is vital. Creative outreach and dialogue may help promote norms and rules among armed groups.
• Adapting to evolving forms of warfare. IHL will continue grappling with how to regulate evolving battlespaces, whether transnational conflicts against non-state actors or remote/automated weapons systems. Maintaining humanitarian principles amidst new instruments of war will be an ongoing challenge.

While updating IHL treaties can be complex, many reforms may be achieved through domestic policies, military doctrine shifts, or supplementary agreements between conflicting parties. Maintaining IHL’s relevance and protections amidst 21st century conflicts will require proactive efforts by national governments, international organizations, legal experts and humanitarian advocates.