International humanitarian law is a very important part of international law relating to times of armed conflict. Its provisions are intended both to protect people who are not or no longer taking part in hostilities as well as to restrict the methods and means used to wage war. Its purpose is to limit the suffering war causes by affording victims the maximum possible protection and assistance. Hence international humanitarian law is concerned with the reality of armed conflict around the world, it does not address issues such the grounds or possible justification under international law for going to war or engaging in armed conflict.
Legal norms designed to alleviate suffering and prescribe moderation in the conduct of war are as old as war itself. From the mid-19thcentury onwards, stimulated particularly by the founding of the Red Cross in 1863 and the adoption of the First Geneva Convention in 1864, major efforts were undertaken to codify these norms, efforts which continue to this day. The key building blocks in this process are the Hague Conventions of 1899 and 1907, the four Geneva Conventions concluded in 1949, which today are almost universally recognized, and the Protocols Additional to the Geneva Conventions concluded both in 1977 and 2005. While the main focus of the Hague Conventions is to stipulate what is and what is not permitted under the rules of war (Law of The Hague), the main focus of the Geneva Conventions is to lay down rules for the protection of the wounded, prisoners of war and civilians (Law of Geneva). Over the past two decades these have been supplemented by the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (1977), the UN Weapons Convention (1980), the Chemical Weapons Convention (1993) and the Ottawa Convention banning anti-personnel landmines (1997). 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 as well as its two additional Protocols.
Many provisions of the aforementioned conventions, including in particular the rules designed to shield civilians from the effects of armed conflict, are today deemed to have universal common law validity, irrespective of whether states are parties to these conventions or not.Humanitarian customary international law is above all important for non-international conflicts, because until now fewer international law regulations exist for them. On 17 March 2005 the International Committee of the Red Cross presented a study on customary rules of international law applicable in the area of international humanitarian law. The study is the result of a multi-year research project to which especially a large number of Red Cross and Red Crescent Societies, individual countries, and international law scholars contributed.
The greater part of international humanitarian law applies to situations involving international armed conflicts waged between subjects of international law. While there are only a limited number of rules concerning non-international armed conflicts, i.e. conflicts between one or more states on one side and a non-state actor on the other (civil wars, for example), these rules are also considered to be of great importance.
International humanitarian law and human rights
International humanitarian law and international human rights protection complement one another. While both aim to protect individuals, they do so in different circumstances and in different ways. While international humanitarian law is concerned with situations of armed conflict, the main focus of international human rights protection is to ensure that the rights of individuals in peacetime are not violated by organs of the state. Even in times of armed conflict, however, there is a hard core of human rights which must under all circumstances be respected (so-called human rights minimum standards). However, 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 on the one hand and humanity on the other. This gives rise to the following key principles:
Neither the conflicting parties nor members of their armed forces have unlimited freedom in the choice of methods and means with which to wage war. Hence the use of weapons and methods which inflict excessive injuries and unnecessary suffering is forbidden.
To protect the civilian population and civilian objects, these must in all circumstances be a clear distinction made 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 power of an opposing party have the right to have their lives and dignity respected. They must be protected from any violence or repressive measures.
It is prohibited to kill or injure an adversary who surrenders or is unable to continue fighting.
On 1 July 2002 the Statute of the International Criminal Court (ICC) entered into force. The idea behind the establishment of such a Court is to close gaps in the existing system for the implementation of international humanitarian law. It is a move which demonstrates, too, that countries are now ready to break the vicious circle by which crimes against international humanitarian law go largely unpunished. The ICC will make it possible to effectively punish through an international body those responsible for crimes committed after its establishment such as genocide, crimes against humanity or war crimes. What constitutes the most serious crimes against international humanitarian law is specified in Article 8 of the Rome Statute, which lists 50 Elements of Crimes defined as war crimes carrying heavy penalties. This new codification is based to the greatest degree possible on the aforementioned international humanitarian law sources, notably the four Geneva Conventions of 1949 and the 1977 Protocols Additional I and II to these Conventions.
The most important institution concerned with promoting and protecting international humanitarian law is the International Committee of the Red Cross (ICRC). It is active in over 80 countries and has over 12,000 employees. Although it is an association under Swiss law based in Geneva, it has 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 the wounded as well as sick or shipwrecked troops, visiting prisoners of war and providing aid and succour for civilians. In situations of civil war, too, the ICRC is entitled under Article 3 of the Geneva Conventions to offer its services to the warring parties. The basic pre-requisite for its work is strict impartiality and neutrality.
Also the International Humanitarian Fact-finding Commission, constituted according to Article 90 of Protocol I of 1977 additional to the Geneva Conventions of 1949 plays a special role in ensuring that international humanitarian law is respected and enforced. The International Humanitarian Fact-finding Commission is a committee of 15 independent experts that investigates serious violations of international humanitarian law in countries recognizing the competence of the commission (72 countries at present).
Together 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 last International Red Cross Conference was held in Geneva from 28 November to 1 December 2011.
Documents on International Humanitarian Law (Second Edition 2012; ISBN 978-3-89665-564-6)
A Joint Publication of the Federal Foreign Office, the German Red Cross, and the Federal Ministry of Defense
(English/German; 1200 pages)