The term International Humanitarian Law came to be used from 1950 by the ICRC (International Committee of the Red Cross) and is now generally used for that body of law earlier called the Laws and customs of War or the law of Armed Conflict. This change in nomenclature is also indicative of the changing direction of the law.
Today IHL has become a subject of international attention as the media spotlight cases being taken up before International Criminal Tribunals and the International Criminal Court. These include the arrests and prosecutions of war criminals such as former President of Liberia Charles Taylor, former Yugoslav strongmen Radovan Karadzic and Ratko Mladic, and the arrest warrants on the President of the Sudan and the slain Libyan leader Muammar Gaddafi and his son.
The Laws of War were the earliest part of international law. International law regulated the conduct of States, and in the absence of any judicial or administrative machinery for the settlement of disputes war was a legitimate means for the redress of wrongs. There was no law outlawing aggressive war as we have today in Article 2(7) of the UN Charter. Hence war was regarded as a legitimate means of acquiring territory. It is not surprising that the 17th century treatise on International law by the well-known jurist Hugo Grotius is titled "De Jure Belli ac Pacis" the laws of war and peace.
However it must be noted that from earliest times, rules regulating armed conflict existed. These rules were designed to prevent attacks on and injury to, noncombatants, i.e. civilians, particularly women and children and combatants who had laid down their arms or were injured. There were also restrictions on the type of weapons that could be used. Rules existed in all cultures as evidenced by, for example, the Indian epic Mahabharata the Japanese Bushido and the medieval European codes of chivalry. How far they were adhered to is another matter.
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. These rules were in the form of norms and customs 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. Presently 198 states including India and Sri Lanka are party to the Geneva Conventions of 1949 though many 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, 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. This 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.
The significant development of the law in the latter half of the 20th Century and the 21st Century is the expansion of IHL into internal armed conflicts. This development shows the influence of human rights norms and principles. It may be noted that while the International Declaration of Human Rights was promulgated by the General Assembly of the United Nations in 1948, the four Geneva Conventions on IHL were promulgated in 1949. Human Rights law which developed much later protects individuals against their own state, while IHL protected persons in the hands of a party to the conflict or an occupying power, of which they were not nationals.
Today this difference is being blurred as IHL is now applicable to internal armed conflicts as well. Protocol 11 of the Geneva Conventions and many new rules of Customary IHL specifically relate to the victims of non-international (internal) armed conflict. The statute of the International Criminal Court ICC, includes crimes under the head of internal armed conflicts, in its definition of war crimes over which the Court has jurisdiction.
The increasing humanitarian element is also seen in the provisions of Additional Protocols 1&11 of 1977 to the Geneva Conventions, which provide extensive protection to civilians and include prohibition of starvation, forced movement of civilians, provision of food and medical supplies as well as prohibition of extensive environmental damage. Vulnerable groups such as women and children are given special protection. Rape and indecent assault are prohibited and are war crimes under the Statute of the ICC.
Special provision is made for the care of children during hostilities, and it is prohibited to recruit children under the age of 15 into the armed forces of the State, or of militant or insurgent groups, and this too is a war crime. These developments can be attributed to the influence of human rights law. However Human Rights law is a distinct branch of law and the two should not be confused, although there are points of overlap.
Although earlier the promotion of IHL had been largely left to the ICRC (International Committee of the Red Cross), in recent decades, we see an increasing involvement of the United Nations and UN bodies in promoting and enforcing IHL.
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 Somalia, Bosnia Herzegovina, Kosovo and most recently Libya. We also see the setting up of ad hoc International Criminal Tribunals by the Security Council. They include the international tribunals on the former Yugoslavia and Rwanda, and the UN assisted tribunals in Cambodia. They function in addition to the permanent International Criminal Court (ICC) in 2002.
However it is not only the responsibility of international bodies to promote and enforce IHL. Under the Geneva Conventions of 1949, to which practically all states are parties, States have the responsibility to enforce IHL. Furthermore the principle of Universal Jurisdiction has been developed within customary international law. Under this principle, States too can prosecute persons guilty of war crimes in their own courts. The ICC too recognizes 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.
Looking backwards in time many centuries ago to the rock inscriptions (273-232 BC) of the great Mauryan Emperor Asoka, in the Indian subcontinent, a truly humanitarian approach to war is seen. In the first rock inscription the emperor states that he was revolted and saddened by the killings and displacement of people which took place in his war of conquest against Kalinga.
He felt great remorse and was converted to the teachings of the Buddha -- 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.
(The writer is a law lecturer) |
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