International Humanitarian Law
International Humanitarian Law
International humanitarian law (IHL) is the body of treaty and customary international law that regulates the behavior of states in armed conflict. IHL has two primary purposes. First, it protects those who do not participate or are no longer participating in armed conflict, including sick and wounded soldiers, prisoners of war, and civilians. Second, it regulates the means and methods that states may legally use to carry out armed conflict. The primary sources for modern IHL are the four Geneva Conventions of 1949 and the Additional Protocols of 1977.
Although much of IHL is concerned specifically with international armed conflict, each of the Geneva Conventions contains an identical article, known as Common Article Three, that concerns non-international conflicts. The Additional Protocol II of 1977 also regulates behavior in non-international conflicts. A number of other international agreements have sought to regulate the types of weapons that may be used in war. These conventions include the Biological Weapons Convention (1972), the Conventional Weapons Convention (1980), the Chemical Weapons Convention (1993), and the Landmines Convention (1997). These treaties have sought to ban certain types of conventional and unconventional weapons that cause excessive civilian casualties or are otherwise deemed to be inhumane.
The corpus of IHL consists of a wide range of laws intended to limit the effects of warfare. The major provisions of modern IHL include a responsibility to provide medical assistance to sick and wounded soldiers (even those of the enemy), to treat prisoners of war with dignity and respect, and to protect civilian populations. Prisoners of war cannot be put on trial or punished simply for fighting in a war, and they have a right to have contact with family and friends even while they are being detained. IHL also requires states to minimize the effects of armed conflict on civilian populations and to meet the needs of the population of any territory that they may occupy. Finally, IHL obligates states to allow international humanitarian organizations, such as the International Committee for the Red Cross (ICRC), to monitor their compliance with the provisions of IHL during armed conflict.
Weapons conventions are relatively recent in human history, although the use of biological and chemical weapons goes back to the Middle Ages. The earliest international effort to ban chemical weapons was the 1899 Hague Peace Conference, which failed to prevent the use of poison gas in World War I (1914–1918). The 1925 Geneva Protocol was the most significant attempt to control the production and deployment of biological as well as chemical agents between the two world wars.
The Biological Weapons Convention (BWC) of 1972 was the first disarmament treaty banning production of an entire category of weapons. Intended to supplement the Geneva Protocols, the BWC had been ratified by 150 nations by 2005. The Chemical Weapons Convention (CWC) of 1993 had been ratified by 167 countries as of 2004. The CWC set up a timetable for the destruction of chemical weapons, from 1 percent in April 2000 to 45 percent by April 2004 and 100 percent by April 2007. By April 2004, however, only about 14 percent of stockpiled chemical weapons had been destroyed.
Since 2001 there has been increased concern regarding the possible use of biological and chemical weapons by terrorist groups. The Centers for Disease Control (CDC) lists no fewer than 47 viruses and bacteria that could be used for bioterrorism, and thirteen categories of chemicals (nerve gases, vomiting agents, biotoxins, and others) that could be used against civilians.
historical development of international humanitarian law
Modern IHL dates to the mid-nineteenth century. As conflict became more destructive with the advent of modern industrial warfare, both private individuals and states began to recognize the need to regulate it. In 1863, the United States issued the Lieber Code to the Union Army. Among the provisions in the code were rules regarding the continuation of the rule of law in occupied areas; respect for foreign diplomats and consuls; protection of works of art from destruction, theft, or sale; and protection for prisoners of war.
With regard to prisoners of war, the code is quite detailed as to what type of combatants may lawfully receive prisoner-of-war status and the protections and rights they possess. One interesting aspect of the code was its declaration that "the law of nations knows of no distinction of color" (Article 58). Even though the code was considered to be reflective of customary international law of the time, it was not an international treaty and was not binding on other states.
Around the same time, however, the movement that would become the ICRC began to press European governments to adopt a code of conduct for the treatment of sick and wounded soldiers. After an initial conference in Geneva in 1863 at which several states agreed to resolutions concerning the recognition of medical personnel during battle, the Swiss Federal Council sponsored a conference in 1864 for the purpose of adopting a convention concerning the treatment of the sick and wounded. This convention included provisions that required governments to treat any sick or wounded soldier regardless of nationality, recognized the neutrality of medical personnel, and established a red cross on a white background to be the official international symbol for medical personnel. States around the world would agree to the convention, including the United States in 1882.
The 1864 Geneva Convention was designed to protect the sick and the wounded. It did little to regulate the practice of warfare itself, however. Both governments and private individuals began to press for a formal codification of the laws of war, including the treatment of prisoners of war, the types of weapons that could be used in war, and the rights of belligerent and neutral parties. The culmination of this movement came at the International Peace Conference held in The Hague in 1899. At this conference, states adopted a number of conventions and declarations regarding the laws of war. Among the provisions adopted were protections for prisoners of war, including recognition that captured soldiers could not be forced to contribute to the capturing state's war effort, an expansion of the 1864 Geneva Convention's rules regarding the sick and wounded to maritime situations, and several limitations on the types of weapons that could be used in war. In particular, the conference placed a five-year ban on the use at any time of weapons dropped from the air, the use of poisonous gases, and the use of certain types of bullets that were considered to cause unnecessary and cruel injuries.
Both the 1864 Geneva Convention and the Hague Conventions were updated in the early twentieth century: the Geneva Convention in 1906 and the Hague Conventions in 1907. Those states that chose not to ratify the updated conventions were bound to respect the earlier conventions if they had ratified them.
World War I (1914–1918) marked both an advance and a setback in the creation of IHL. Although the use of poisonous gas and other methods of warfare that states had attempted to ban represented a failure to regulate the methods of warfare, the war itself saw the ICRC take an active role in protecting sick and wounded soldiers and in extending protections to prisoners of war, even though it had no explicit authority to do so. During the war, the ICRC visited prisoner-of-war camps and reported violations of the principles of protection of prisoners of war to the governments involved in the war. After the war, several efforts were made to advance IHL, both in the regulation of weapons and in the protection of those not taking part in combat. In 1925, the Geneva Protocol prohibited the use of poisonous gases and biological weapons. In 1929, both the 1906 Geneva Convention and the 1907 Hague Convention were strengthened with respect to the treatment of prisoners of war, and the Red Crescent became officially recognized as a symbol equivalent to the Red Cross.
Despite the advances in formal IHL after World War I, the conduct of World War II (1939–1945) led to grave violations of both customary and treaty-based IHL. Beyond the conduct of Nazi Germany toward Jews, Roma (gypsies), and other populations, the conduct of the war itself led to the targeting of civilian populations by all sides. Advancements in aerial bombing made it possible to target entire cities, including civilians. German developments in missile technology led to the use of the V1 and V2 rockets against the United Kingdom. Submarine warfare was used indiscriminately in multiple theaters of combat, often destroying vessels that were officially neutral or otherwise protected by IHL. The targeting of civilians was justified by the argument that civilian populations were an integral part of the war effort in modern battles. The fire bombings of Dresden and Tokyo and the use of atomic weapons against Hiroshima and Nagasaki were the logical extension of this argument, despite the existence of international law to the contrary.
If the war itself presented major challenges to IHL, the aftermath of the war did contribute to the development of the law through the Nuremberg and Tokyo War Crimes Tribunals. The charter of the International Military Tribunal, the governing document for the Nuremberg Tribunal, included reference to crimes against peace, war crimes, and crimes against humanity. Included in
these crimes were the mistreatment of prisoners of war and civilian populations and the destruction and plunder of public and private property (Article 6). The trials themselves were groundbreaking in that they held individuals responsible for acts that were contrary to international law and were, at least in theory, legal according to the domestic laws of Germany. Sovereign immunity—that is, immunity from prosecution for heads of state or government representatives—was not recognized for those who were charged.
Although many of those responsible for violating IHL during World War II were brought to justice, one major criticism of the tribunals was that they represented victor's justice. Germany certainly did commit acts that violated international law and norms of behavior, especially in carrying out the mass murder of Jews and other populations. At the same time, however, some of the crimes for which the Germans were tried were committed by the Allied powers as well, especially the indiscriminate use of force against civilian populations.
World War II itself also pointed to weaknesses in IHL and led to further efforts to strengthen the formal treaty law that encompasses IHL. The 1948 Genocide Convention created a binding treaty that outlawed any attempt to eliminate a group based on its race, religion, or ethnicity. In 1949 the four Geneva Conventions, the cornerstone of modern humanitarian law, came into existence. Convention I concerns the treatment of sick and wounded soldiers on land; Convention II does the same for soldiers at sea; Convention III details laws related to the treatment of prisoners of war, and Convention IV describes the treatment of civilians in war, including the responsibilities of an occupying power. The major part of these treaties pertains to international armed conflict. Common Article Three of the treaties, however, is specific to noninternational conflict—the wording of Article 3 in each treaty is identical. The treaties themselves refer to the role that international humanitarian bodies such as the ICRC should play in helping to ensure that states involved in armed conflict abide by the conventions. The vast majority of the world's states have accepted these treaties.
Since 1949, a number of other treaties have been created that contribute to IHL. Many of these treaties have concerned the types of weapons that may legally be used in war. The Biological Weapons Convention (1972), the Chemical Weapons Convention (1993), and the Landmines Convention (1997) all seek to ban entire classes of weapons. The Conventional Weapons Treaty (1980) seeks to ban weapons that are designed to cause excessive or cruel injuries. Of these treaties, the most successful is the Chemical Weapons Convention. Most of the world's largest powers have ratified that treaty and have worked to create an enforcement protocol and an agency to supervise its implementation. Little real progress has been made to achieve similar steps for the Biological Weapons Convention, however, and the Landmines Convention has met with opposition from many powerful states, including the United States.
The nature of armed conflict in the post–World War II era has also led to advancements in laws regulating the treatment of noncombatants. At the time that the Geneva Conventions of 1949 were written, the majority of armed conflicts occurred between states. As decolonization progressed in the wake of World War II, however, intrastate (as opposed to interstate) conflicts became more common. Although the Geneva Conventions did contain Common Article Three regarding non-international conflict, many viewed that provision as inadequate to address some of the abuses occurring in internal conflicts. In response to those concerns, two protocols to the Geneva Conventions were created in 1976, one of which dealt specifically with internal conflict.
international humanitarian law in the 1990s
During the Cold War and into the 1990s, many states and other actors violated the tenets of IHL. In many conflicts civilian populations were directly targeted, individuals were forced to serve in military forces against their will, and the treatment of prisoners of war often did not conform to international legal standards. Two conflicts in the early 1990s were particularly violent, however. In Rwanda and the former Yugoslavia, militias and government forces were involved in the indiscriminate targeting of civilian populations, including acts of genocide. In response to the actions in these two states, the United Nations Security Council created the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). Both of these tribunals based their jurisdiction , in part, on the 1949 Geneva Conventions and the 1948 Genocide Convention. The ICTY dealt with both international and domestic conflict, whereas the ICTR's jurisdiction was primarily for an internal conflict. Common Article Three and the 1977 Additional Protocol II to the Geneva Conventions provided the legal justification for much of the ICTR's work. Although both of these tribunals have faced significant difficulties, they do represent an international effort to bring individuals to justice for committing violations of IHL. They also created important precedents . For example, cases under the tribunals reaffirmed that individuals could not argue that they were ordered to commit certain acts as a defense. In addition, the courts found that civilians participating in certain acts of genocide or violations of IHL could be also be held accountable, whereas IHL traditionally had applied to individuals acting in official capacities.
Despite their importance, however, the ICTY and ICTR also demonstrated a major weakness of IHL—the relative lack of enforcement. Despite the active role that the ICRC and other humanitarian aid agencies have played in international conflicts, major violations of IHL often go unpunished. In the 1990s, several states and organizations began to actively push for a permanent court to punish individuals for violations of IHL and other international criminal acts. The result of these efforts was the creation of the Rome Statute of the International Criminal Court (ICC), opened for signature in 1998. The ICC came into existence in July 2002, after enough state parties had ratified it.
The ICC has jurisdiction over a number of crimes including genocide, crimes against humanity, war crimes, and aggression. Article 8.2(a) of the statute includes "grave breaches of the Geneva Conventions of 12 August 1949" in the jurisdiction of the court. Despite the advance in the enforcement of IHL that the ICC represents, it is not a panacea. The ICC is dependent on states that have ratified the statute to aid in the capture of accused individuals. Many states object to the jurisdiction of the ICC, including the United States. The lack of consensus regarding the ICC makes its task difficult as it begins to address criminal breaches of international law.
challenges to ihl in the twenty-first century
The major new challenge presented to IHL in the twenty-first century is the changing nature of those involved in conflict. The terrorist attacks on the United States on September 11, 2001 pointed to the difficulties of modern conflict. Non-state actors that may contain members from a wide range of states can carry out incredibly sophisticated attacks. The conflict, or "War on Terror," that the United States began to wage after the September 11 attacks is not a war in the traditional sense, as the enemy does not possess a specific territory or a defined nationality. For IHL, one of the problems this presents is the lack of a clear status for prisoners captured in conflict.
The Geneva Conventions and the two protocols contain rules for the treatment of prisoners of war and for those participating in armed combat outside the traditional rules of war, but the determination of who is a legal or illegal combatant has proved to be problematic. A related problem is the lack of a defined end to combat operations. In traditional war, prisoners are returned to their territory once combat has ceased. Armed conflicts involving non-state actors may not have clearly defined endpoints, making the decision on when to repatriate prisoners of war difficult.
Despite these challenges, IHL continues to affect the decisions states make in armed conflict. Despite its disagreement with some of the decisions of the ICRC, the United States still allows the ICRC to visit its detention facilities and to report on the United States's treatment of prisoners. Although many violations of IHL go unpunished, mechanisms such as the ICTY, ICTR, and ICC mean that some of those who violate IHL do so with impunity . Unlike many other areas of international law, IHL has gained widespread acceptance from states around the world in principle, if not always in practice.
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International Committee of the Red Cross. <http://www.icrc.org/eng>.
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Eric W. Cox