By Eftychia Antonopoulou,
Nowadays, societies are up against different challenges. It is really concerning that recently we have seen multiple wars occur that affect countries as well as civilians. Hence, it is very significant that we are familiar with the law applied in such tragic situations, the international humanitarian law or else known as the law of armed conflict or the law of war (jus in bello). In other words, it is important to know about this critical set of rules that aims at limiting the humanitarian consequences of armed conflicts.
IHL was first imagined and materialized in Europe by Henry Dunant. After having witnessed a battle between French and Austrian troops in 1859, Henry Dunant realised the lack of aid for the war victims and soldiers. With the consent of the European capitals, he then proposed the establishment of independent relief organisations and an international agreement that will grant these organisations the protection of neutrality. And that is how the international committee of the Red Cross was founded in 1863.
One year later, the Geneva Convention for the Amelioration of the condition of the wounded in Armies in the Field, was adopted by 12 states. In 1907 the Hague Regulations concerning the Laws and Customs of War on Land regulated the entitlement to combatant privilege and prisoner-of-war status, the use of means and methods of warfare during hostilities, and the protection of inhabitants of occupied territories from inhumane treatment. After the end of World War II, in 1949, a revised and completed set of Four Geneva Conventions was introduced. Almost every state in the world is bound by these four Conventions. Finally, in 1977 two additional more detailed Protocols about the protection of victims of armed conflicts, were adopted to further develop IHL. Enriched with custom, general principles of law and soft law IHL is now one of the most codified and ratified branches of international law.
IHL applies once an armed conflict has begun. An armed conflict, more specifically, is a de facto state of hostilities. However, inter-State confrontations and internal disturbances, such as riots, that are sporadic acts of violence, do not comply with the term ‘armed conflict’ and as such IHL does not apply. Additionally, IHL recognizes two different kinds of armed conflicts, international and non-international ones. International armed conflicts refer to armed force or belligerent occupation between States and non-international armed conflicts refer to armed force between governmental authorities and organized armed groups or between such groups. This distinguishment is critical because it determines which rules of IHL apply in each case.
The two main areas covered by IHL are the following: firstly, the protection of civilians, medical and military personnel who are not, or no longer, taking part in the conflict. These categories are entitled to respect for their lives as well as legal guarantees. Secondly, the restrictions on the means of warfare, such as weapons, and the methods of warfare used by states or armed groups. These restrictions aim at avoiding the destruction of civilian property and the targeting of civilian population.
Moreover, IHL must be distinguished from legal frameworks that may apply in parallel but which have different objects and purposes, such as the UN Charter, the law of neutrality, human rights law and international criminal law. Regarding human rights law, multiple opinions have been expressed on the matter of whether HRL can protect war victims as well, and whether it can co-apply with IHL, but the truth is that these bodies of law coexist. In the areas that HRL and IHL overlap it is significant that one interprets one area in the light of the other achieving, in such a way, a harmonious interpretation. Additionally, the application of the rule that is more specifically directed to the situation, the lex specialis, will ensure the parallel co-application of these branches of international law. The idea that IHL, as a regime, is always the lex specialis during armed conflicts is a misunderstanding. For example, IHL does not contain rules regarding detention in non-international armed conflicts and that is an area where HRL has to fill in.
To conclude, IHL is an essential part of international law because of its role in protecting human dignity and reducing suffering during armed conflicts. The evolving nature of conflicts and their impact on global stability has rendered IHL more vital than ever. Respecting and reinforcing international humanitarian law can decrease humanitarian effects of war and ensure a better future for our world.
References
- What is international humanitarian law?. icrc.org. Available here
- Nils Melzer. “International Humanitarian Law: a comprehensive introduction”. International Committee of the Red Cross
