Sunday Times 2
International Humanitarian Law in 21st Century: Is it more humane today?
The term International Humanitarian Law came to be used from 1950 by the International Committee of the Red Cross (ICRC) and is now generally used for that body of law earlier called the Laws and customs of War or the law of Armed Conflict. Does this change in nomenclature indicate the changing direction of the law? On the one hand, it could be said that IHL is increasingly focusing on humanitarian concerns and under the Geneva Conventions and Additional Protocols, the concern for human life, human rights and even environmental concerns, are provided for. On the other hand, advances in military weaponry and technology have made civilians more vulnerable in situations of armed conflict, and the use of such terms as ‘collateral damage’ masks the loss of human life and suffering being caused.
Israel’s attack on Gaza: Modern warfare presents increasing dangers to civilians — with civilian deaths being treated as collateral damage
A new feature in today’s law is the development of a body of international criminal law, and the greater emphasis on accountability for breaches of the law. Today IHL has become a subject of public interest as the media spotlight cases being taken up before international criminal tribunals and the International Criminal Court, the arrests and prosecutions of war criminals — for example, former Liberian President Charles Taylor, Bosnian Serb strongmen Radovan Karadzic and Ratko Mladic — and the arrest warrants served on heads of State for war crimes and crimes against humanity.
The Laws of War were the earliest part of international law. Initially they applied only in international armed conflicts. In the latter half of the 20th Century and the 21st Century we see these rules being extended to internal armed conflicts as well. This development shows the influence of human rights norms and principles. Before the promulgation of the UN Charter there was no law outlawing aggressive war as we have today in Article 2(7) of the Charter. Hence war was regarded as a legitimate means of acquiring territory. IHL evolved as a compromise between two conflicting interests. On the one hand, the law had to make allowance for the phenomenon of war and legitimate military goals. On the other hand, humanitarian concerns required that the individual and his well being should be assured. Thus rules regulating armed conflict existed from early times. The rules were not based on moral grounds alone, but also on grounds of reciprocity, as they were in the interests of both parties to an armed conflict.
The rules of armed conflict took the form of customary law and as the system developed serious breaches came to be regarded as war crimes. In Europe in the 19th century, these customary laws came to be set out in treaties and conventions. In the 20th century after the 2nd World War they came to be promulgated in the Geneva Conventions of 1949 and subsequently the Optional Protocols 1 & 11 of 1977. At present, 198 states, including India and Sri Lanka, are party to the Geneva Conventions of 1949, though many states are yet to become party to the Optional Protocols. However, it must be noted that the rules of customary international law continue to bind even states not party to the conventions.
Principles governing the conduct of hostilities in armed conflict have developed within customary international law. Among the important principles is the distinction between civilians and combatants, the regulation or prohibition of certain types of weapons causing superfluous injuries or unnecessary suffering and the rule of proportionality, i.e. the use of force and the resulting destruction must not be disproportionate to the objective and the military advantage sought. The resulting destruction is now taken to include environmental damage. The Security Council resolution 687 of 1991 for example referred to Iraq’s liability under international law for environmental damage caused by the burning of oil wells during its invasion of Kuwait. The rule of proportionality was one of the rules Israel was alleged to have breached in its reprisal attack on the Hamas in Gaza in 2009 and is referred to in the Goldstone report as a violation of International Humanitarian law.
Modern warfare presents increasing dangers to civilians as we see in the increasing use of air power even including drone attacks. Civilian deaths are being treated as collateral damage. The recent Israeli attacks on the Gaza strip in 2009, 2011 and 2014 show large scale civilian casualties, as also the recent Saudi bombings in Yemen. In the case of Israel it is claimed that Hamas has been using civilian areas to make their attacks and using them as human shields. In this connection, it must be pointed out that non state actors, insurgent forces or militants also have to follow the rules of warfare and their leaders are also liable on the principle of individual criminal responsibility for breaches of IHL Present day modern warfare uses new techniques such as the so called ‘precision operations’ in the conduct of hostilities. They require, accurate weapon systems, computers, surveillance and a high degree of technology. In some cases it enhances the prospect of compliance with IHL principles, but where it is used for targeting specific targets in urban areas with high civilian concentrations any small mistake can result in large scale civilian deaths, euphemistically called collateral damage.
A Conference on IHL called by the Shurath HaDin in Isreal dealt with the theme that in an age of terrorism the laws of war must evolve to meet new challenges. While there is a need to meet these new challenges one must have a clear cut definition of terrorist organisations and not label all insurgencies or liberation struggles as such. At the same time it is necessary to keep in mind that the core principles of IHL cannot be deviated from, particularly when it comes to the protection of civilians who are not combatants. During World Wars I and II, the great loss of life and the terrible inhumanity in the treatment of the conquered peoples by the Nazis and their allies, led to efforts to mitigate these horrors in the second half of the 20th century and the 21st century. Hence in this era, there has been an emphasis on the humanitarian side of IHL, and on human rights. The principle of individual criminal responsibility which was enuncuiated at the Nuremberg trials and the establishment of the International Criminal Court in the present century are all milestones on this road.
Today, international law has come to take the view that large scale violations of human rights and IHL, and the ensuring magnitude of human suffering can constitute a threat to international peace and security and can give rise to measures under Chapter VII of the UN Charter. On this basis, there have been Security Council and General Assembly Resolutions on such situations arising in different countries, and the greater involvement of the UN and UN bodies in securing and implementing the law. However, States too have a role to play, and this is set out in the the Geneva Conventions of 1949 to which the great majority of states are party to. The ICC, too, recognises the principle of complementary jurisdiction of States and will only prosecute in the case where the State concerned is either unable or unwilling to do so.
It is noteworthy that at another point in time, many centuries ago in the Indian subcontinent, the Rock inscriptions (273-232 B.C) of the Emperor Asoka show us a truly humane approach to war. In the first Rock inscription the Emperor states that he was revolted and saddened by the killings and deportations of people which took place in his war of conquest against Kalinga. He felt great remorse and was converted to the teachings of the Lord Buddha of non violence and righteousness. The Emperor states, inter alia, “I have had this Dharma edict written so that my sons and grandsons may give up conquests, or that if military conquests are made they be done with forbearance and light punishments, or better still that they make conquests by Dharma alone, i.e. Dhamma Vijaya. This indeed would be the true summation of International Humanitarian Law, when instead of weapons to maim and injure one’s enemies, the weapon of righteousness is used to conquer the hearts and minds of one’s opponents.