Since the beginning of advancement in warfare, humans have resorted to violence as a way to settle disagreements. Yet through the ages, people from around the world have tried to limit the brutality of war. It was this humanitarian spirit that led to the first Geneva Convention of 1864. The Convention also played a monumental role in the birth of modern international humanitarian law. Setting the basic limits on how wars can be fought these universal laws of war protect those fighting as well as those no longer able to. A distinction must always be made between who or what may be attacked and who or what must be spared and protected. Most importantly civilians can never be targeted. To do so is a war crime. The laws of war prohibit torture and other ill-treatment of detainees, irrespective of their past. They must be given food and water and allowed to communicate with loved ones. This preserves their dignity and keeps them alive. Front line workers such as medical workers save lives sometimes in the most dangerous conditions, fighters from both sides if wounded in a deadly battle must be taken to the nearest hospital. In cases of deadly skirmishes, medical workers must always be allowed to do their job and the red cross or red crescent must not be attacked. The sick or wounded have a right to be cared for regardless of their allegiance.
Founding Principles Governing International Warfare
Founding principles of international warfare require discussion. These principles are- jus ad bellum and jus in bello. These, translated from Latin, refer to the laws of war and the conditions under which states may resort to the use of force. Jus in bello, in Latin, refers to the law in war- norm's governing behaviour in armed conflicts. Both, jus ad bellum and jus in bello deal with matters linked to armed conflict. They refer to different branches of law. Jus ad bellum is another term for the international law regulating the resort to force by states- this law determines whether such use of force is legal or not. Article 2, Section 4 of the United Nations Charter states, “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations Charter”.
Exceptions to this prohibition are self-defence and authorization by the UN Security Council. Jus in bello is another term for international humanitarian law. IHL does not rule on whether an armed conflict is legal or not. That is not relevant for IHL, instead, it sets clear rules for whenever there is an armed conflict. These rules are laid down notably in the 1949 Geneva Conventions, their Additional Protocols, and Customary IHL. For international and non-international armed conflicts, they regulate matters ranging from the treatment of the wounded to the prohibition of attacks against civilian populations. IHL applies to all parties to an armed conflict irrespective of the reasons for fighting, irrespective of who might be considered to be entitled to use force, and irrespective of lawfulness or unlawfulness under the jus ad bellum. So, the difference between these two terms should be clear. Jus ad bellum, the international law regulating the resort to force by states, jus us in bello, IHL- a pragmatic set of rules that states have developed and agreed to for governing behaviour in all armed conflicts. As long as armed conflicts take place, IHL is there to uphold the fundamental tenets of humanity. Even while fighting.
Facets of International Humanitarian Law
Advances in weapons technology have meant that the rules of war have also had to adapt. That is because some weapons and methods of warfare are unable to distinguish between fighters and civilians. Limits on their use have been agreed upon. In the future, wars may be fought with fully autonomous robots but will such robots ever have the ability to distinguish between a military target and someone who must never be attacked? No matter how sophisticated weapons become they must be in conference with the rules of war. Let us remember, international humanitarian law is all about making choices that preserve a minimum of human dignity in times of war and make sure that living together again is possible once the last bullet has been shot.
Before proceeding any further, let us take a step back and observe the differences between international humanitarian law (IHL), international human rights law (IHRL), and international criminal law (ICL). However, it must be noted that IHL, IHRL, and ICL are complementary. However, each has its unique role in armed conflicts, an example of that can be the following provisions from the bodies of law- the Convention on the Rights of the Child, its Optional Protocol on the Participation of Children in Armed Conflict, and the Rome Statute of the International Criminal Court.
Salient Differences amongst international humanitarian law (IHL), international human rights law (IHRL), and international criminal law (ICL)
International Humanitarian Law (IHL)
International Human Rights Law (IHRL)
International Criminal Law (ICL)
· IHL and IHRL are bodies of international law that share some of the same aims. Both protect the lives and dignity of individuals.
· IHL deals with many issues that are outside the purview of IHRL, such as the conduct of hostilities, combatant, and prisoner of war status, and the protection of the red cross and red crescent emblems.
· Apart from a few preparations required in peacetime, IHL applies only in armed conflicts.
· IHL cannot be derogated from unless- see the exception.
· It was made specifically for the extreme situation of armed conflict.
· ICL recognizes that serious violations of IHL can also be prosecuted on the international level. Examples are the International Military Tribunals after World War II and the International Criminal Tribunals for the former Yugoslavia and Rwanda.
· IHRL applies at all times i.e. both in peacetime and in situations of armed conflict.
· IHRL deals with aspects of life in peacetime that are not regulated by IHL, such as freedom of the press, the right to assembly, to vote, and to strike.
· IHRL, in principle, binds only states.
· In contrast, under strict conditions, IHRL allows for derogations from certain rights during public emergencies that threaten the life of a nation.
· ICL and IHL regulate armed conflicts. It also requires the criminal repression of serious violations of IHL War Crimes.
· The 1949 Geneva Conventions and Additional Protocol I outlined specific serious violations as grave breaches.
· Certain other serious violations need to be criminally repressed under Customary IHL.
· Today the International Criminal Court can prosecute war crimes provided it has jurisdiction.
· IHRL also interacts with International Criminal Law.
Codification and Progressive Development of Founding Principles
To further this cause, the Geneva Conventions, codify and progressively develop the ambitions of international law. Upon revisiting 1949, the atrocities of war loomed large in recent memory. More than 50 million were dead in the wake of World War II. Every day people found themselves without adequate legal protections. And so, the world vowed to do better. A diplomatic conference brings together practically all the states of the world. Its effect will be to alleviate human suffering, to bring aid to all military and civilian persons incapacitated by wounds, sickness, captivity, or loss of their freedom. Strong limits were set on the brutalities of war through the Geneva Conventions to protect persons who are not in combat. In the years that followed, this system of protective yet realistic rules enabled the Geneva Conventions to make their way from the halls of lawmakers to the battlefield, where they matter most. States now have the responsibility to make sure grave breaches committed during the armed conflict will not go unpunished, regardless of where they take place. Today, one notes the profound impact the Geneva Conventions continue to have around the globe.
In The Democratic Republic of Congo, military officials pledged to stop rape and other forms of sexual violence amidst a civil war. The stigma and destruction of dignity caused by sexual violence can upend the dynamics of communities. Without humanitarian assistance provided for in the Conventions, the losses and trauma could have been even more catastrophic. The Geneva Conventions created a system of preventive measures to ensure that breaches of conduct would not occur, with an obligation for States to train their armed forces on the laws applicable during warfare. All the soldiers receive and accept the rules of war as provided for by the Geneva Conventions. During the armed conflict, one must respect the standards of humanity even concerning the enemy. Today, violations of the laws of war continue to be of concern to the ICRC. The countries entrusted to the International Committee of the Red Cross the role of "guardian" of the law of war. For instance, every time a healthcare worker crosses through a checkpoint or essentials like food and water are provided to families in besieged cities, it’s made possible by the Geneva Conventions because even wars have limits.
Analyzing the Principles
Let us further analyze the principles of IHL. When wars occur, IHL sets out agreed rules for how they are to be conducted. States develop these rules to protect the civilian population from the effects of hostilities. These rules outline what targets may be legally attacked and how. These rules are based on a careful assessment of military necessity and humanity. Like all of IHL, they apply regardless of the reasons for fighting. The three main principles are distinction, proportionality, and precautions. The principle of distinction requires parties of armed conflicts to distinguish at all times between the civilian population, combatants, civilian objects, and military objectives. Attacks against military objectives including combatants are not prohibited.
In contrast, Articles 13 to 18 of Additional Protocol II define the protection and means of protection that must be adopted for the benefit of civilians. The civilian population, individual civilians, and civilian objects must never be attacked. Direct attacks against them are prohibited as are indiscriminate attacks i.e., attacks that by their nature strike military objectives. Civilians or civilian objects without distinction, under the principle of proportionality, are immune. Under Rule 14, Attacks against military objectives are prohibited if such attacks may be expected to cause incidental loss of civilian life. Injury to civilians, damage to civilian objects, or a combination of these which would be excessive concerning the concrete and direct military advantage anticipated. In simple terms, this means that a military objective may only be attacked if the potential accompanying civilian losses are not expected to outweigh the foreseen military advantage. Under Rule 15, the principle of precautions requires that in the conduct of military operations, constant care must be taken to spare the civilian population civilians and civilian objects in attack so-called active precautions.
These include doing everything feasible to verify that targets are indeed military objectives. Cancelling or suspending an attack if it becomes apparent that the target is not a military objective and giving effective warning of attacks that may affect the civilian population. Unless circumstances do not permit, so-called passive precautions require taking all feasible steps to protect the civilian population and civilian objects. Under one's control against the effects of attacks, the principles of distinction, proportionality, and precautions are complementary and all three must be respected for an attack to be lawful. Distinction, proportionality, and precautions, like IHL, in general, do not stop wars from happening. But these three principles work together as a tool to limit suffering and destruction. By outlining rules for the conduct of hostilities IHL can prevent or at least reduce war's most devastating effects.
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. - “State parties must enact any legislation necessary to provide effective penal sanctions for persons committing or ordering any of these breaches”. And, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. “They must search for persons alleged to have committed or ordered such breaches and bring them before their own courts regardless of their nationality or extradite them to another state party”.