International Humanitarian Law
International Humanitarian Law (IHL) is also known as the laws of armed conflict as it is applied only during some armed conflict or war. It is the law that determines the conduct of armed conflict. It comes under International Law. International Humanitarian Law serves the objective of limiting the effects of war on people who are not a party in the war. It helps to protect the lives of people who are not a part or are no longer a part of the armed conflict. This law is not applied in peace, i.e., without any armed conflict.
International Humanitarian Law is a sub-division of Public International Law (PIL). PIL is a law established on customs, traditions, treaties, agreements, general principles, and norms. Generally, PIL applies to only states, but International Humanitarian Law is applied to both state and non-state entities engaged in any armed conflict.
IHL delimits the options of warfare available to the parties of armed conflict. It aims at protecting people, property, and objects that may be harmed during any war/armed conflict. This law draws its inspiration from the principles of humanity, justice, and peace. It tries to limit the war and its effects. This law lays down the rules of conduct that are to be followed and the responsibilities of the parties who are engaged in combat.
Violation of the International Humanitarian Law is referred to as ‘war crimes.’ This law is jus in bello; it defines the conduct and responsibilities of parties to war or armed conflict. When I signed a treaty, this law becomes binding for the nations who signed it. There are some unwritten laws to be followed, which are the customary laws of war, established at the Nuremberg War Trials after the Second World War.
The present International Humanitarian Law consists of two branches:
1. The law of the Hague, and
2. The law of Geneva
The law of Hague refers to the rules of war derived in the Hague Conventions of 1899, 1907, and the law of Geneva refers to the provisions of humanitarian law as derived from Geneva Convention since 1863. These both are jus in Bello, which sees that all practices of war/armed conflict are. There were many examples when the lives of civilians were compromised in the name of war, including King Ashok’s killings during the Kalinga war, the crusader massacres in Jerusalem in 1099. Humanitarian law aims at restricting the methods and techniques of warfare, saving the lives of civilians, providing protection and medical attention to the injured, and treating the prisoners of war with respect.
History of International Humanitarian Law:
The Armistice Agreement was signed between Columbia and Spain in Venezuela in 1820. The Lieber Code was a more structured approach to humanitarian law. It was developed by Francis Lieber in 1863 for treating the non-combatants in a just and humane manner during the American Civil War (1861-1865). The International Committee of Red Cross was made in 1863 as a result of a book written by Henry Durant, accounting for the adversities he witnessed during the Crimean War (1853-1856). On 22 August 1864, the “Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field” was drawn up. It had provisions for the treatment of the wounded in an armed conflict. Presently, the Geneve Conventions apply to around 194 countries, achieving universal acceptance and support.
Rules/Provisions of International Humanitarian Law:
- People who are not engaged in armed conflict from any side, and are not causing any destruction of property, are to be protected.
- The methods and techniques used for engaging in a war/armed conflict are limited. The parties to a war cannot use whatever method of warfare they want.
- Parties engaged in an armed conflict shall pay particular focus on determining who is a combatant and who isn’t. People who are not involved in the dispute shall not be harmed. During a war, attacks must be aimed at only hostile parties to the conflict.
- Prisoners of war and other captured people shall be treated humanely, and they shall be protected against violence. They shall also be allowed to contact their families.
- The symbol of the red cross or red crescent shall be respected, and all the wounded people shall be provided with treatment, on whichever side of the war they are.
Violations of the rules of IHL and consequences:
Geneva Convention IV, Article 5 states that combatants who violate any of the rules of the Geneva Convention lose their rights and status of ‘prisoners of war.’ However, they are still to be treated humanely, and they still preserve their right to a free, fair trial. People who violate the Geneva Conventions laws or the laws of war can be held liable individually.
IHL provisions for non-combatants:
Distinction- The parties to war are required to distinguish between combatants (people directly involved in hostilities), military objects and civilians/non-combatants, civilian objects. Civilians have the right to be protected as long as they refrain from taking part in hostilities.
Necessity- IHL states that parties to war shall apply a force that is just enough to defeat their enemy and not a greater one. Also, their force shall be in proportion to the force applied by their enemy. All due care must be taken to ensure that the force used does not lead to the loss of civilian lives or objects.
Humane treatment- Article 3 of the Geneve Conventions states that civilians and even the prisoners of war must be treated humanely at all times. They should not be subjected to humiliation or torture. Also, no execution of the wounded or non-combatants can take place without a fair trial.
Non-discrimination- People who fall in the category of wounded, prisoners of war and civilians should not be subjected to discrimination on the grounds of their race, political opinions, religion, sex, nationality, etc. everybody have equal protection of their fundamental rights and rights under laws of war, without any discrimination. This provision applies to even non-international conflict as it is a part of the customary laws.
Women and Children- Children under the age of eighteen must not be allowed to take part in the armed conflict in any way, and women and children are to be specially protected from any torture, indecent assault. They have to be a preference.
International Human Rights Law
International Human Rights Law (IHRL) is also applied during peace times, along with war times. It is also part of Public International Law (PIL). It aims at protecting the fundamental human rights of all people at every level. Like PIL and IHL, International Human Rights are also made up of customary laws, treaties, agreements between two states, which, when signed, become legally binding. International Human Rights Law also contains some non-binding provisions to assist in the implementation of IHRL. There are two schools of thought about the relationship between IHL and IHRL. The purists are the ones who believe that both are distinct as their area of applicability is different. The constitutionalists believe them to be nearly the same, with international humanitarian law being a part of the international human rights law.
UN High Commissioner for Human Rights:
The General Assembly (GA) of the United Nations (UN) adopted the Vienna Declaration and Programme of Action in 1993. This established the UN high commissioner for human rights. For the enforcement of international human rights law, the UN Commissioner for Human Rights was replaced by the UN Human Rights Council in 2006.
International Bill of Human Rights
The two covenants that form part of the bill on human rights were International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which were adopted in 1966. Some other international treaties have also been adopted. These are called ‘Human rights Instrument.’
Universal Jurisdiction in violation of Human Rights Law:
Some countries argue that universal jurisdiction should be provided to all nations to punish people who commit a crime against humanity. The argument rests on the logic that a crime against humanity is a crime against the whole world, and therefore, every country has a right to try and punish such criminals. The Belgium courts even passed a law of universal jurisdiction in 1993. Some big organizations of human rights, like Amnesty International, also support the plea.
But some scholars like henry Kissinger argue that providing universal jurisdiction would not serve the purpose of Human Rights Law and that it would also create a tyranny of the judges.
While protection of Human rights is vital to allow a just and humane treatment to everybody and many conventions, treaties have been signed; laws have been made for this purpose, many states still do not follow the rules and get away without some strict punishment or a trial. A recent example of this is Pakistan during the Kul Bhushan Jadhav case. It is quintessential for the world to understand the importance of human rights, and much work is still to be done for universal application and enforcement. Human Rights allow everyone, including combatants, prisoners of war, wounded combatants, and civilians to have a right to be given medical treatment, not to be subjected to torture, to be treated humanely. With the age of nuclear bombs, it is high time that countries understand the Human Rights Laws and follow it.
This article is authored by Yashvi Agarwal, First-Year, B.A. LL.B student at RGNUL, Patiala
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