International humanitarian law
refugee camp in Somalia, © Inga Kjer/photothek.net
International humanitarian law lays down principles and rules for those involved in armed conflicts and thus forms a very important part of international law.
It aims to help reduce the suffering caused by wars by recognising the victims and supporting them as much as possible.
International humanitarian law applies to times of armed conflict. It endeavours to balance two opposing interests, that is, to take military interests into account and to uphold the principle of humanity. It includes provisions intended both to protect people who are not or no longer taking part in hostilities and to restrict the methods and means used to wage war.
A primary purpose of international humanitarian law is to limit the suffering caused by war by affording victims the maximum possible protection and support. This means it is concerned with the reality of armed conflict around the world. Its role is not to address issues such as the grounds or possible justification under international law for engaging in armed conflict.
Legal norms designed to prescribe moderation in the conduct of war and to alleviate suffering are as old as war itself. Modern international humanitarian law dates back to the foundation of the Red Cross in 1863 and the adoption of the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864. Since the mid-nineteenth century, major efforts have been made to codify these norms – efforts which continue to this day. The key elements in this process are the Hague Conventions of 1899 and 1907, the four Geneva Conventions of 1949 and the Protocols Additional to the Geneva Conventions concluded in 1977 and 2005. While the main purpose of the Hague Conventions is to stipulate what is and what is not permitted under the rules of war (Law of The Hague), the Geneva Conventions primarily lay down rules for the protection of the wounded, prisoners of war and civilians in armed conflicts (Law of Geneva).
Over the past decades, these have been supplemented by the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (1977); the Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects (1980); the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their destruction (1993); the Convention on the prohibition of the use, stockpiling, production and transfer of anti personnel mines and on their destruction (1997) and the Convention on Cluster Munitions (2008). Another important convention in the area of international humanitarian law is the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and its two additional Protocols.
Many provisions of these conventions, in particular the rules designed to shield civilians from the effects of war, are now regarded as customary international law applicable to all countries, irrespective of whether or not they are parties to the conventions. Humanitarian customary international law is especially important for non international armed conflicts, as fewer international law regulations exist for them to date. In 2005, the International Committee of the Red Cross (ICRC) conducted a major study on which rules in the field of international humanitarian law can be seen as applicable under customary international law.
International humanitarian law and human rights
International humanitarian law and international human rights protection complement one another. Although both aim to protect individuals, they do so in different circumstances and different ways. While international humanitarian law is concerned with armed conflict situations, the main focus of international human rights protection is to ensure that the rights of individuals are not violated by organs of the state in times of peace.
Even in times of armed conflict, however, a “hard core” of human rights (human rights minimum standards) must be respected under all circumstances. International human rights protection is not concerned with legal norms designed to limit the means and methods of warfare, which is one of the prime objectives of international humanitarian law.
Underlying all norms in the area of international humanitarian law is the effort to find a balance between the conflicting interests of military necessity and upholding the principle of humanity in armed conflicts. This gives rise to the following key principles of international humanitarian law:
• Neither the parties to the conflict nor members of their armed forces have unlimited freedom in the choice of methods and means with which to wage war. The use of weapons and methods that inflict excessive injuries and unnecessary suffering is thus forbidden.
• In order to protect the civilian population and civilian objects, a clear distinction must be made at all times between civilians and combatants. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks must be aimed exclusively at military targets.
• Combatants and civilians in the hands of an opposing party have the right to have their lives and dignity respected. They must be protected from any violence or repressive measures.
• Killing or injuring an adversary who surrenders or is unable to continue fighting is prohibited.
The most important institution concerned with promoting and protecting international humanitarian law is the International Committee of the Red Cross (ICRC). Although it is an association under Swiss law based in Geneva, it has an international legal personality in a number of respects.
The ICRC’s work in connection with international armed conflicts is based on the four Geneva Conventions of 1949 and Protocol Additional I of 1977, which give it the right to carry out specific activities such as assisting wounded, sick or shipwrecked soldiers, visiting prisoners of war and providing aid to civilians. Under Common Article 3 of the Geneva Conventions, the ICRC is also entitled to offer its services to the warring parties in civil wars. The prerequisite for its work is its impartiality and neutrality.
Along with the International Federation of Red Cross and Red Crescent Societies, the ICRC and the National Red Cross and Red Crescent Societies form the International Red Cross and Red Crescent Movement. Its representatives meet with the representatives of the States Parties to the Geneva Conventions at the international Red Cross and Red Crescent conferences that are usually held every four years.
The International Humanitarian Fact-Finding Commission constituted in accordance with Article 90 of Protocol I of 1977 additional to the Geneva Conventions of 1949 also plays a special role in ensuring that international humanitarian law is respected and enforced. This Commission comprises a committee of 15 independent experts that investigates serious violations of international humanitarian law in countries that recognise its competence (currently around half of all countries in the world).