International Humanitarian Law (IHL) is the jus in bello, or the law that regulates the conduct of armed conflicts. The International Committee of the Red Cross describes IHL as "the body of rules which, in wartime, protects people who are not or are no longer participating in the hostilities. Its central purpose is to limit and prevent human suffering in times of armed conflict. The rules are to be observed not only by governments and their armed forces, but also by armed opposition groups and any other parties to a conflict." Serious violations of this law are called war crimes.
Since World War II, the term IHL has also been used by scholars to include crimes against humanity insofar as that category of crimes has emerged from war crimes, even though it is now unrelated to war crimes and is applicable in times of war and peace; and genocide, insofar as that crime was originally a broader extension of crimes against humanity, which applies in times of war and peace.
IHL does not include the jus ad bellum, meaning the law applicable to the right or legitimacy to resort to war. Thus, "crimes against peace," as referred to in the International Military Tribunal Charter and the International Military Tribunal for the Far East Statute, and since the United Nations Charter's adoption known as aggression, are not part of IHL.
IHL's genesis dates back more than five thousand years to various civilizations that evolved humanitarian principles underlying the regulation of armed conflicts. In time, these humanitarian principles formed an interwoven fabric of norms and rules designed to prevent certain forms of harm from befalling civilian noncombatants and some categories of combatants such as the sick, wounded, shipwrecked, and prisoners, as well as persons covered by the Red Cross/Red Crescent emblems and those who provide medical and humanitarian assistance during armed conflicts. Eventually, the more serious breaches of these rules were criminalized.
IHL's normative development has never been part of a consistent or cohesive international legal policy. Instead, the law developed as a haphazard mixture of conventions, customs, general principles, and the writings of scholars. At first, the Hague conventions of 1899 and 1907 codified some of the customary principles and norms on which the state parties could agree. The Four Geneva Conventions of August 12, 1949, became a more comprehensive codification, later to be supplemented by two protocols in 1977.
Throughout history the tensions between humanitarian goals and military/political ones have been evident. Proponents of the former seek to expand the protections of persons and nonmilitary targets, to limit the use of force in general, and to restrict the use of certain weapons in particular. They have encountered resistance and opposition from those who press the concept of "military necessity" and seek to achieve victory through the fastest means and with the least costs, irrespective of the harm inflicted on the enemy. Humanitarian arguments alone have seldom been sufficient to induce states to limit the use of their might against their enemies, particularly against weaker ones who are incapable of inflicting reciprocal harm. Pragmatic and policy arguments, however, have greatly aided the development of IHL. Mutuality of interest and other considerations, such as economic costs and effectiveness, have combined with humanitarian ones to produce the existing body of norms and rules of conduct governing armed conflicts.
The Law of Armed Conflict Through the Ages
A historical review of the regulation of armed conflicts reveals that civilizations for more than five millennia have either prohibited or condemned unnecessary use of force against certain categories of persons and against certain targets. This historical process reveals the convergence and commonality of basic human values in diverse civilizations, in light of the fact that geographically separated groups have reached the same humanistic conclusions without, in some cases, any evidence of the migration of such ideas from one civilization to another. This convergence is embodied in the Preamble of the 1907 Hague Convention which indicates that such commonly shared values make up the "dictates of humanity" leading to the concept of "crimes against humanity."
The Chinese scholar Sun Tzu, in the fifth century bce, asserted that in war it is important to "treat captives well, and care for them." He also wrote that a general should only attack the enemy's armies, "for the worst policy is to attack cities." The Chinese code of chivalry reveals that it is not the purpose of war to inflict unnecessary or excessive suffering on the enemy, nor is it useful. It was not until the late 1800s that Western civilization accepted the principle of prohibiting unnecessary human pain and suffering during wartime. This principle first appeared in the 1874 Brussels Declaration (Brussels Conference on the Laws and Customs of War) and was then included in the 1899 and 1907 Hague Conventions' Annexed Regulations. It is a basic principle of the 1949 Geneva Conventions and is considered to be part of customary international law. Like some other principles of IHL, namely, proportionality and discrimination, it is relative and subject in application to good judgment and good faith.
Parallel to the developments in China, and without evidence of the migration of Chinese ideas, the Indian civilization evidenced in the fourth century bce the same values and policies. One of India's epic poems, Ramayana, reveals that it was expressly forbidden to use a mythical weapon that could obliterate an entire enemy nation because "such destruction en masse was forbidden by the ancient laws of war, even though [the enemy] was fighting an unjust war with an unrighteous objective." Another famous Hindu epic, the Mahabharata, which may date from as early as 200 bce, similarly prohibits the use of hyperdestructive weapons. In the story, the mythical weapon called the pasupathastra was forbidden because its use was not conventional and Hindu teachings held that unconventional weapons were not moral.
Even though these tales are from mythological literature, they reflect social values. In the fourth century bce, the Book of Manu developed norms based on these values. The Laws of Manu, as they were sometimes called, stated that "when a king fights his foes in battle, let him not strike with weapons concealed, nor with barbed, poisoned, or the points of which are blazed with fire . . . [because] these are the weapons of the wicked." The laws also prohibited weapons that caused unnecessary or excessive suffering. These included arrows with heated, poisoned, or hooked spikes and tips.
In ancient Greece, awareness existed that certain acts were contrary to traditional usages and principles spontaneously enforced by human conscience, thus establishing the applicability of customary law to armed conflicts. Herodotus recounts that as early as the fifth century bce certain conduct was prohibited in Athens as "a transgression of the laws of men, and of the law of the human race generally, and not merely as a law applicable exclusively to the barbarians." In Homer's epic The Odyssey, the use of poisoned weapons was considered to be a grave violation to the way of the gods. Once again, history records the recognition by a civilization that the "human race" has its laws.
Roman law evidenced these same values, probably inspired by the ancient Greeks. The Roman armies were more disciplined than those of any other ancient nation. They did not as a rule degenerate into indiscriminate slaughter and unrestrained devastation. They observed restrictions that others did not. This was the beginning of the notion of professionalism in armies that ripened in the nineteenth century to form a foundation for the modern law of armed conflict.
Such self-imposed restrictions were not universally respected. Ancient Greeks and Romans both applied the law of war only to civilized sovereign states, properly organized, and enjoying a regular constitution. Hence, barbarians and savage tribes were debarred from the benefits of these rules. The assumption was that such uncivilized combatants would not abide by the same rules. This assumption is reflected in the nineteenth-century law of armed conflict, namely, in the concept of mutuality of obligations.
Roman law also developed the terms jus ad bellum (the law governing the right to use armed force) and jus in bello (the law governing the conduct of hostilities), terms that continue to be used in contemporary international law. The Roman jus belli, or the law of war, served as a foundation for legal developments until the late 1800s.
The three monotheistic faiths of Judaism, Christianity, and Islam join in the affirmation of humanitarian principles. The second Book of Kings states:
the King of Israel . . . said to Eli'sha, "My Father shall I slay them?". . . He answered, "You shall not slay them. Would you slay those whom you have taken captive with your sword and bow? Set bread and water before them that they may eat and drink and go to their master."
Another relevant text of the Old Testament is found in Deuteronomy, in which specific regulations for the conduct of sieges are spelled out:
When thou shalt besiege a city a long time in making war against it to take it, thou shalt not destroy the trees thereof by wielding an axe against them; for thou mayest eat of them, but thou shalt not cut them down; for is the tree of the field man, that it should be besieged of thee? Only the trees of which thou knowest that they are not trees for food, them thou mayest destroy and cut down, that thou mayest build bulwarks against the city that makes war with thee, until it fall.
Traditional Jewish law in the Talmud also regulated the destruction of vegetation:
Josephus elaborates that this included not setting fire to their land or destroying beasts of labor. Maimonides flatly states that the destruction of fruit trees for the mere purpose of afflicting the civilian population is prohibited and, finally, we have the broad interpretation of Rabbi Ishmael that "not only are fruit trees but, by argument, from minor to major, stores of fruit itself may not be destroyed."
Jews honor the Sabbath and other holy days like Yom Kippur, when no warlike activities can be conducted; the same is true in Islam on the days of the Eid. In Medieval times, the Roman Catholic Church also specifically proscribed the conduct of war on particular days. The Archbishop of Arles proclaimed in 1035 that there was to be a "truce of God" from "vespers on Wednesday to sunrise on Monday."
The Islamic civilization had specific rules on the legitimacy of war and its conduct, based on the Koran and the Sunna, the tradition of the Prophet Muhammad, which are the two principal sources of the Shari'a, Islamic law. The Prophet Muhammad himself entered into a peace treaty with the Meccans, the treaty of Hudaibiya that provided for the protection of civilians.
Early Islamic values relating to warfare included the reduction of unnecessary or excessive suffering. The Koran enjoins on the victor the duty to feed captives. Also, Islamic legal treatises on the law of nations from the ninth century forbade the killing of women, children, elderly, blind, crippled, and the insane.
Since the Middle Ages, it has been primarily Western civilization that advanced the common values and shaped the principles, norms, and rules of conduct of what are now parts of IHL. The writings of Aristotle, Cicero, St. Augustine, and St. Thomas Aquinas set forth the philosophical premises for the conditions of legitimacy of war, the jus ad bellum, so as to distinguish between just and unjust war; but Western civilization also developed principles, norms, and rules of conduct limiting the means and harmful consequences of the conduct of war. St. Thomas Aquinas refers to these basic laws of humanity in the treatment of civilian noncombatants, the sick, wounded, and prisoners of war as follows, "these rules belong to the jus gentium which are deduced from natural law as conclusion principles." He called it "positive human law," not because it was codified, but because citizens of civilized nations had agreed to it.
As the laws of chivalry developed in medieval Western Europe, so did rules limiting the means and manner of conducting war. Heraldic courts developed a code of chivalry, enforced by the Christian princes that regulated a knight's conduct in battle. The codes of chivalry prohibited the use of certain weapons, such as the cross-bow, whose use was forbidden by the Second Lateran Council of 1139.
National laws and military regulations followed the evolution of the law of armed conflict. Among early national regulations are those that Gustavus Adolphus of Sweden promulgated in 1621 in the Articles of Military Laws to be Observed in the Wars. They provided in the general article that "no Colonel or Captain shall command his soldiers to do any unlawful thing; which who so does, shall be punished according to the discretion of the judge." This was probably the first time that the rule of command responsibility was posited in a normative prescription. In the modern law of armed conflict it is a well-established principle.
In the United States, the first Articles of War, promulgated in 1775, contained explicit provisions for the punishment of officers who failed to keep good order among the troops. It also included a number of prescriptions for the protection of civilians, prisoners of war, and the sick and injured in the field. This provision was retained and strengthened in the Articles of War of 1806 and served as the basis for prosecutions arising out of the Civil War for conduct against the law of nations.
The most noteworthy national regulations are the United States Lieber Code of 1863, the 1880 Oxford Manual, the German General Staff Kriegsbrauch im Landkriege of 1902, and Great Britain's War Office Manual of Military Law of 1929. These are only some examples of national military regulations that preceded the "Law of Geneva."
Today most countries of the world have military or other legislation that includes either in whole or in part the norms of the four Geneva Conventions of August 12, 1949 and the two Additional Protocols of 1977. These conventions require the introduction of such norms in the national laws of the contracting parties, their dissemination, and training of military personnel to ensure compliance and to avoid claims of ignorance of the law.
Sources of Law and Legal Regimes
Assuming the broader meaning of IHL as encompassing all violations of the law of armed conflict, crimes against humanity, and genocide, it is necessary to distinguish between various legal regimes that pertain to the three subjects. They have not been brought together into a single legal regime, even though they all share the same goals and purposes of minimizing human harm and material damage.
The first legal regime is the customary international law applicable to the conduct of war, binding on all states. Its historical evolution described earlier ripened into the 1899 Hague Convention, which codified what the state parties considered the customary practices of states. That convention was amended in the 1907 Hague Convention No. IV on land warfare and its annexed regulations. Because the 1907 Convention and annexed regulations contained several broad principles that withstood the test of time, they are considered the foundation of customary international law applicable to armed conflicts. The four Geneva Conventions of August 12, 1949, which as of July 1, 2004, have been ratified by 192 states, are also deemed to reflect customary international law, as are parts of Protocol I (1977), which deals with conflicts of an international character (ratified by 161 states), and Protocol II (ratified by 156 states) relating to internal conflicts or civil wars. State parties and nonstate parties differ as to which provisions of these two protocols embody customary international law. Although it is thus clear that there is an overlap between the customary and conventional international law of armed conflict, there is a distinction between these two legal regimes that is confusing to nonexperts, particularly to those in the armed forces who have to apply these norms in the course of armed conflicts.
The Hague Conventions and the Geneva Conventions are often referred to as separate bodies of law because the main topic of regulation for each group differs to some extent. The Hague Conventions focus primarily on prohibited means of warfare, whereas the Geneva Conventions address the various categories of protected persons (civilians, sick, wounded, and prisoners of war). There is nonetheless considerable overlap in the so-called Law of the Hague and the Law of Geneva.
The regulation of armed conflict under customary or conventional international law is also divided on the basis of distinguishing conflicts of an international character from conflicts of a non-international character. The 1907 Hague Convention and its annexed regulations apply only to conflicts of an international character, that is conflicts between states. The Four Geneva Conventions of 1949 also generally apply to international conflicts, but they also establish a special regime for conflicts of a noninternational character. The latter are regulated by Article 3, which is identical in all four Geneva Conventions, and by Protocol II (1977), which deals exclusively with conflicts of a noninternational character. Common Article 3 of the Four Geneva Conventions of 1949 is also deemed part of customary international law, as are some parts of Additional Protocol II (1977). In addition, there are purely domestic conflicts that some experts argue should be included under Common Article 3 and Protocol II. Minor domestic or internal conflicts that do not rise to the threshold level of violence to be regulated by Common Article 3 or Protocol II are subject to another legal regime that is discussed later.
The existence of three sublegal regimes applicable to conflicts of an international and noninternational character and minor domestic or internal conflicts is incongruous insofar as the goals and purposes of all three regimes are the same, namely, the protection of certain persons and targets in times of violent conflict. Scholars have argued that there is no valid conceptual basis to distinguish between the same protections offered to the same persons and targets, depending on whether the conflict is legally defined as being of an international or a noninternational character or purely domestic or internal. The distinction, however, exists because it reflects the interests of governments who do not wish to give insurgents and combatants engaged in domestic conflicts with their government a legal status likely to give these groups political legitimacy. Governments usually argue that the resort to violence by domestic insurgent groups is in the nature of terrorism and thus deny them not only legitimacy, but the fundamental safeguards and protections contained in the regulation of armed conflict.
Under the 1949 Geneva Conventions, "grave breaches" include, inter alia, murder, torture, rape, mistreatment of prisoners of war and civilians, wanton and willful destruction of public and private property, destruction of cultural and religious monuments and objects, use of civilian and prison-of-war human shields, collective punishment of civilians and prisoners of war. Common Article 3 does not contain the same specificity, although scholars argue that the prohibitions are the same. Common Article 3 refers to transgressions of its prohibitions as "violations" and not as "grave breaches."
The 1949 Geneva Conventions and Protocol I (1977) establish certain consequences for "grave breaches," which include the duty for states to criminalize these violations in their domestic laws, to prosecute or extradite those who commit such violations, and to provide other states with judicial assistance in the investigation or prosecution of such "grave breaches." The Conventions also establish a basis for universal jurisdiction so that all state parties to the Geneva Conventions can prosecute such offenders, and removes statutes of limitation for such offenses. Common Article 3 of the 1949 Geneva Conventions and Protocol II (1977) do not contain the same explicit legal obligations. Scholars argue that the obligations to prevent and suppress "violations" of Common Article 3 and Protocol II (1977) should be treated in the same manner and with the same legal consequences as the "grave breaches" of the 1949 Conventions and Protocol I (1977); that is, as war crimes.
Contemporary doctrinal developments complement customary and conventional international law. In other words, the writings of scholars become the bridge between the different legal regimes of customary and conventional international law, the "Law of the Hague" and the "Law of Geneva" and between the subregimes of conflicts of an international character and conflicts of a noninternational character. This proposition is also bolstered by the fact that both conventional and customary international law are predicated on certain general principles enunciated in both the "Law of the Hague" and the "Law of Geneva," such as the principles of prohibiting the infliction of unnecessary human pain and suffering, proportionality, and discrimination in the use of force.
Prohibitions and restrictions on the use of certain weapons are deemed part of the customary law of armed conflict, but control of weaponry usually arises out of specific international conventions. Nonetheless, overarching principles contained in both customary and conventional international law prohibit the infliction of unnecessary human pain and suffering and require proportionality in the use of force.
The first efforts to proscribe weapons that cause unnecessary pain and suffering developed in 1868 in the St. Petersburg Declaration, which prohibits the use of explosive projectiles. The subsequent Brussels International Declaration Concerning the Laws and Customs of War (1874) states, "the only legitimate object which states should have in view during war is to weaken the enemy without inflicting upon him unnecessary suffering." Based on this principle, a 1925 protocol was adopted for the Prohibition of the Use of Asphyxiating, Poisonous, or Other Gases. A protocol prohibiting bacteriological methods of warfare followed, and later treaties addressed other weapons, culminating in the Anti-Personnel Mine Convention of 1997. In 1980 a major effort was undertaken in 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. Four additional protocols have been adopted to ban or restrict Non-Detectable Fragments; the Use of Mines, Booby-Traps, and Other Devices; the Use of Incendiary Weapons; and Blinding Laser Weapons. The treaties clearly indicate continuity in the evolution of the basic principles mentioned earlier, and the efforts of the international community from 1868 to date in its pursuit of the humanization of armed conflicts. Governments argue that each and every one of the 73 conventions prohibiting or restricting the use of certain weapons is binding only on the states parties to the particular treaty. Yet, both customary international law and general principles of law also apply and are binding upon non-state parties to these conventions.
Weapons of mass destruction, including chemical, biological, and nuclear weapons, which inflict unnecessary pain and suffering, also violate the principle of discrimination because these weapons cannot distinguish between combatants and noncombatants. The prohibition of chemical and biological weapons in the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare and the 1993 Chemical Weapons Convention (which carries criminal consequences), reflect customary law principles, as does the 1972 Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction. Notwithstanding the efforts of a majority of the state parties, the 1972 Biological Weapons Convention has not been amended to parallel the same level of prohibition and criminalization achieved by the 1993 Chemical Weapons Convention, because of the opposition of the United States government, which views such a regime as placing undo burdens on the American chemical and pharmaceutical industries. For similar but different political/military considerations, nuclear weapons have not so far been banned, even though they clearly, if used, violate the principle of discrimination between combatants and protected persons, and inflict unnecessary human pain and suffering on civilian populations. They also cause damage to the present and future environment and indiscriminately have an impact on future health. Thus, politics, more than rationality and humanitarian considerations, frequently impedes the development of international law.
An example illustrating the tension between international humanitarian law and the political/military interests of certain governments is the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction. The states parties take the position that the prohibition of landmines that cannot be detonated or removed after the end of a conflict is necessary because they have proven to cause unnecessary human pain and suffering to innocent civilians long after the end of a conflict. Other governments, such as that of the United States, continue to claim that the use of landmines even without the ability to detonate or remove them after the end of a conflict is permissible. Clearly, the use of landmines violates the principle of discrimination between combatants and noncombatants, but proponents of their continued availability as a weapon argue that the principle of military necessity justifies the use of landmines without restrictions. Although military necessity may permit the use of mines in times of armed conflict, it is not a justification for not having mines that can be detonated after the end of the conflict, nor is it a justification for failing to require the state that placed these mines to remove them after the conflict's end.
The Expanded Meaning of Humanitarian Law
The expanded contemporary meaning of IHL includes crimes against humanity and genocide. There are two reasons for this inclusion, even though both of these crimes apply in peacetime as well as during war, in contrast to the law of armed conflict. Crimes against humanity originated in the work of the 1919 Commission on the Responsibility of the Authors of War and War Crimes, which was established after World War I by the preliminary Peace Conference in Paris. In that original conception, the notion of what was then called crimes against the laws of humanity was an extension of "war crimes" as defined in the 1907 Hague Convention and annexed regulations. The 1945 International Military Tribunal Charter, relying upon the 1919 Commission's concept, defined "crimes against humanity" as an international crime in Article 6(c). The Far East Tribunal followed suit in 1946. In both of these instruments, the connection to "war crimes" was necessary. Subsequently, that connection was removed, first by a 1950 report of the International Law Commission and then in the statutes of the ad hoc Tribunal for Rwanda and the International Criminal Court. The statute of the International Criminal Tribunal for the Former Yugoslavia preserves a connection between "crimes against humanity" and an armed conflict.
In 1948 the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which was intended to encompass "crimes against humanity." But the latter concept is broader and includes conduct not covered by the Genocide Convention. Genocide requires a specific intent to "eliminate in whole or in part" a "national, ethnic, or religious group," which excludes social and political groups, whereas crimes against humanity protects any group of persons against whom a state policy of persecution is directed and does not require a specific intent to eliminate the group in whole or in part.
Since the end of World War II, and with the establishment of the United Nations, a parallel development has taken place in the legal regime of international human rights law (HRL). Like IHL, HRL springs from the same commonly shared human values. Its norms and standards, however, apply in times of peace, but many of them also apply in times of war. For example, the right to life and the protection of physical integrity are protected under both IHL and HRL. Similarly, the protection of public and private property, cultural monuments and objects, and cultural heritage are equally protected under IHL and HRL. Other human rights may be curtailed in times of war or other national emergency. Thus there is an imperfect overlap between IHL and HRL.
Since the two legal regimes have different political constituencies, it is frequently argued by governments and military establishments that IHL should be kept separate and apart from HRL. Although that argument is methodologically appealing, it ignores the fact that HRL also applies in times of war, save for the human rights that may be suspended temporarily during wartime. If the aim is to protect persons and certain objects or property, then it makes little legal sense to have two superimposed and separate legal regimes whose ultimate goals and purposes, as well as specific protections are the same. A good example is the rights of victims to reparations and other forms of redress, which should not be distinguished on the basis of whether the violation occurs under IHL or HRL.
The inclusion within the meaning of IHL of violations of the law of armed conflict (whether they be called "war crimes" or "grave breaches" of the Geneva Conventions or "violations" of Common Article 3 of the Geneva Conventions and Protocol II), crimes against humanity, and genocide is conceptually justified from a humanistic perspective, namely, that of the protection of persons from certain depredations. For the same reason, HRL should also be integrated in a single legal regime. Suffice it to recall that torture is prohibited under HRL by the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, which criminalizes acts of torture. It is also prohibited under IHL by both conventional and customary international law, and is a "grave breach" of the Geneva Conventions, as well as a war crime. Other protections of life and physical integrity contained in IHL and HRL also evidence this conclusion. Since the goals and purposes of IHL and HRL are the protection of persons, it should make no difference whether the context is one of war or peace, or whether it is that of a conflict of an international or noninternational character, or a minor internal conflict.
The International Court of Justice, in an advisory opinion rendered in July 2004, held as follows: "the Court considers that the protection offered by human rights conventions does not cease in case of armed conflicts as regards the relationship between international humanitarian law and human rights law, some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law." The International Court of Justice concluded that human rights law is the general applicable law and that international humanitarian law is the lex specialis.
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M. Cherif Bassiouni
"Humanitarian Law." Encyclopedia of Genocide and Crimes Against Humanity. . Encyclopedia.com. (September 16, 2019). https://www.encyclopedia.com/international/encyclopedias-almanacs-transcripts-and-maps/humanitarian-law
"Humanitarian Law." Encyclopedia of Genocide and Crimes Against Humanity. . Retrieved September 16, 2019 from Encyclopedia.com: https://www.encyclopedia.com/international/encyclopedias-almanacs-transcripts-and-maps/humanitarian-law
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