Humanitarian Law: Civil War And International Application

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict by protecting civilians and those not participating in hostilities. It also restricts the means and methods of warfare available to combatants. IHL is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols. While many parts of IHL are now accepted as international customary law, it is increasingly violated by warring parties.

IHL applies in both international and non-international armed conflicts. International armed conflicts usually involve at least two countries and are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I. Non-international armed conflicts usually take place within the territory of a single country and are subject to a more limited range of rules set out in Common Article 3 of the four Geneva Conventions and Additional Protocol II.

IHL provides protection for civilians, humanitarian and medical workers, refugees, prisoners, and the wounded and sick. It prohibits attacks against civilians, the use of certain weapons, and the targeting of hospitals and schools.

The protection of civilians and non-combatants during armed conflict is a key principle of IHL.

The protection of civilians, humanitarian and medical workers

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict and protect those not participating in hostilities. It requires the protection of civilians, including humanitarian and medical workers, and the freedom of movement for humanitarian workers in conflict areas.

IHL is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols. The Geneva Conventions of 1949 are a legacy of World War II and greatly improve the legal protection of war victims, particularly civilians in the power of the enemy. The Conventions define the rules pertaining to the usage of and the reverence that should be shown to the Red Cross emblem on a white background.

The entire humanitarian community is concerned by the worrying trend of attacks on humanitarian workers, including the UN, international NGOs, and local civil society. National staff of humanitarian organizations are the most exposed to a variety of risks, such as harassment, physical and psychological harm, intimidation, and damage to critical infrastructure.

To strengthen the protection of civilians, humanitarian and medical workers, the following measures can be taken:

• Reinforcement of internal safeguards: Governments should adopt national policies on the protection of civilians, clarify how they interpret and apply IHL, and prioritize the protection of civilians before, during, and after security operations.
• Integration of civilian harm mitigation approaches: Security and defense forces should consider the evolution of warfare, including the increased reliance on local forces, and better factor in the operationalization of protection of civilians and civilian harm mitigation approaches into military partnerships.
• Strengthening of Civil-Military Coordination (CMCoord): CMCoord activities can play a crucial role in delivering protection outcomes by ensuring that all actors involved do no harm and are aware of the intended and unintended consequences of their actions. Engagement with communities and civil society should also be further developed as the first line of protection.
• Resourcing NGOs adequately: Providing NGOs with sufficient means to manage the safety and security of their personnel is essential for mitigating harm and reducing risk. Training, context analysis, negotiation skills, communication means, and security management are all essential capabilities that local and international NGOs need to reinforce.

IHL now includes several treaties that outlaw specific weapons known to cause deaths and injuries long after conflicts have ended, such as land mines and cluster bombs.

The protection of refugees, prisoners, and the wounded and sick

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict. It lays out the responsibilities of states and non-state armed groups during an armed conflict. It is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols.

IHL requires the protection of refugees, prisoners, and the wounded and sick. This includes the following:

• The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross (ICRC), may offer its services to the parties to the conflict.
• Protected persons who are wounded and sick shall be cared for and protected by the party to the conflict that has them in its power. The emblem of the "Red Cross", or of the "Red Crescent", or the "Red Crystal" shall be required to be respected as the sign of protection.
• Parties to a conflict shall at all times distinguish between enemy combatants and protected persons. Attacks shall be directed solely against legitimate military targets.
• Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction.
• To this end, the following acts are prohibited at any time and in any place: violence to life and person, in particular murder, mutilation, cruel treatment, and torture; taking hostages; and outrages upon personal dignity, in particular humiliating and degrading treatment.
• Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the ICRC, in accordance with the provisions of IHL.
• Internees shall be permitted to retain articles of personal use. Money, cheques, bonds, etc., and valuables in their possession may not be taken from them except in accordance with established procedure.
• Internees shall be accommodated and administered separately from prisoners of war and from persons deprived of liberty for any other reason.
• Internees shall be given the means to prepare any additional food in their possession. Sufficient drinking water shall be supplied, and the use of tobacco shall be permitted.
• Internees who work shall receive additional rations in proportion to the kind of labour they perform. Expectant and nursing mothers and children under 15 years of age shall be given additional food, in proportion to their physiological needs.
• Internees shall be allowed to present themselves to the medical authorities for examination. Treatment, including the provision of any apparatus necessary for the maintenance of internees in good health, shall be free of charge.
• Internees shall enjoy complete latitude in the exercise of their religious duties, including attendance at the services of their faith, on condition that they comply with the disciplinary routine prescribed by the detaining authorities.
• Internees may not be prevented from presenting themselves to the medical authorities for examination. The medical authorities of the detaining power shall, upon request, issue to every internee who has undergone treatment an official certificate showing the nature of their illness or injury and the duration and nature of the treatment given.
• Internees shall be allowed to receive, by post or by any other means, individual parcels or collective shipments containing, in particular, foodstuffs, clothing, medical supplies, as well as books and objects of a devotional, educational, or recreational character that may meet their needs.
• Internees shall be allowed to send and receive letters and cards. If the detaining power deems it necessary to limit the number of letters and cards sent by each internee, the said number shall not be less than two letters and four cards monthly.
• Internees shall be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible.

The distinction between international and non-international armed conflict

International humanitarian law (IHL) distinguishes between two categories of armed conflict: international and non-international. While there are challenges to this legal dichotomy, there is no other category of armed conflict under IHL.

Nature of Parties Involved

International Armed Conflict (IAC) involves hostilities between two or more states. The parties involved are typically recognised as sovereign entities and can engage in war on behalf of their respective nations.

Non-International Armed Conflict (also known as an internal armed conflict) takes place within the territory of a single state. It involves armed confrontations between the state's armed forces and one or more organised non-state armed groups, or between such groups themselves.

Applicable Legal Framework

International Armed Conflict is governed by IHL, including the Geneva Conventions and Additional Protocols I and II. These legal instruments provide specific protections for civilians, combatants, prisoners of war, and other affected individuals.

The legal framework for Non-International Armed Conflict primarily consists of Common Article 3 of the Geneva Conventions and Additional Protocol II. These provisions offer minimum protections to all individuals involved in the conflict, irrespective of their affiliation.

Threshold of Violence

International Armed Conflict involves a higher threshold of violence, typically characterised by declared wars, large-scale military operations, and the involvement of regular armed forces of states.

Non-International Armed Conflict encompasses a lower threshold of violence, often characterised by internal disturbances, civil wars, or localised clashes. The conflict may involve a range of armed actors, including rebel groups, insurgencies, or other non-state armed entities.

Rights and Protections

The legal framework governing International Armed Conflict provides extensive protection to all individuals affected by the conflict, including civilians, combatants, and prisoners of war. It regulates issues such as targeting, treatment of detainees, and the conduct of hostilities, emphasising the principles of distinction, proportionality, and military necessity.

While the legal framework for Non-International Armed Conflict offers a lower level of protection, it still provides fundamental safeguards. Common Article 3 ensures humane treatment for all individuals involved, prohibits torture and cruel treatment, and safeguards the rights of the wounded, sick, and civilians not taking part in hostilities.

Recognition and Diplomatic Implications

International Armed Conflict is typically recognised by the international community, and the parties involved may enjoy certain diplomatic privileges and responsibilities. Treaties and customary international law governing state-to-state relations are often applicable.

The recognition and status of Non-International Armed Conflict can be more complex. While the existence of such conflicts is recognised under IHL, they may not always receive widespread international recognition. The legal framework primarily focuses on the protection of individuals within the territory of the state experiencing the conflict.

The rules and principles governing the conduct of warfare

International Humanitarian Law (IHL) is a set of rules that seek to limit the effects of armed conflict and protect civilians and humanitarian and medical workers during conflict. It is also referred to as the laws of armed conflict or the law of war, and it regulates the conduct of war (jus in bello). IHL is a branch of international law that defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare.

IHL is inspired by humanitarian considerations and the mitigation of human suffering. It comprises a set of rules established by treaty or custom that seeks to protect persons and objects affected by armed conflict, while limiting the rights of parties to a conflict to choose their methods and means of warfare.

Distinction:

Parties to a conflict must, at all times, distinguish between enemy combatants and protected persons, who are civilians, the wounded, sick, and prisoners of war. Attacks should be directed solely against legitimate military targets, and civilians must not be targeted.

Proportionality:

This principle requires that attacks on military objects must not cause loss of civilian life considered excessive in relation to the direct military advantage anticipated. Commanders must take all feasible precautions to avoid civilian casualties.

Humane Treatment:

Civilians and persons hors de combat (outside of combat) must be treated humanely at all times. Violence to life and person, cruel treatment, torture, taking hostages, humiliating and degrading treatment, and execution without a fair trial are prohibited against non-combatants. Civilians are entitled to respect for their physical and mental integrity, honour, family rights, religious convictions, and practices.

Non-Discrimination:

Adverse distinction based on race, sex, nationality, religious belief, or political opinion is prohibited in the treatment of prisoners of war, civilians, and persons hors de combat. All protected persons must be treated with the same consideration, and each person affected by armed conflict is entitled to their fundamental rights without discrimination.

Protection of Medical Personnel and Facilities:

Attacks are prohibited on doctors, ambulances, or hospital ships displaying the Red Cross, Red Crescent, or Red Crystal emblems. These signs indicate protection and must be respected.

Prohibition of Certain Weapons:

IHL includes treaties that outlaw specific weapons that cause unnecessary suffering and continue to harm people long after conflicts have ended, such as landmines, cluster bombs, and blinding laser weapons.

Conduct of Belligerents:

Belligerents must meet certain requirements when engaging in combat, including wearing a distinctive uniform or badge, carrying weapons openly, and refraining from impersonating enemy combatants by wearing their uniform. Taking hostages and fighting in the enemy's uniform are acts of unlawful perfidy.

Punishment for Violations:

During conflict, punishment for violating IHL may consist of a specific, deliberate, and limited violation of the laws of war in reprisal. After a conflict, individuals who commit atrocities or breach IHL may be held accountable for war crimes.

These rules and principles aim to protect civilians, humanitarian workers, and those who are not participating in hostilities during armed conflict, while balancing humanitarian concerns with military necessity.

The punishment for violating the laws of war

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict by protecting civilians and combatants who are not participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants. It is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols.

During conflict, punishment for violating the laws of war may consist of a specific, deliberate, and limited violation of the laws of war in reprisal. After a conflict has ended, persons who have committed any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes through the process of law. Nations that have signed the Geneva Conventions are required to search for, try, and punish anyone who has committed or ordered certain "grave breaches" of the laws of war.

Combatants Who Break the Laws of War

Combatants who break specific provisions of the laws of war lose the protections and status afforded to them as prisoners of war, but only after facing a "competent tribunal". At that point, they become unlawful combatants, but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV, Article 5.

Spies and Terrorists

Spies and terrorists are only protected by the laws of war if the "power" which holds them is in a state of armed conflict or war, and until they are found to be an "unlawful combatant". Depending on the circumstances, they may be subject to civilian law or a military tribunal for their acts. In practice, they have often been subjected to torture and execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Spies may only be punished following a trial; if captured after rejoining their own army, they must be treated as prisoners of war. Suspected terrorists who are captured during an armed conflict, without having participated in the hostilities, may be detained only in accordance with the GC IV, and are entitled to a regular trial. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.

War Crimes

Serious violations of international humanitarian law are called war crimes. Article 3 of the Statute of the International Tribunal gives the Tribunal the power to prosecute persons violating the laws or customs of war. This includes, but is not limited to:

• The employment of poisonous weapons or other weapons calculated to cause unnecessary suffering
• The wanton destruction of cities, towns, or villages, or devastation not justified by military necessity
• The attack or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings
• The seizure, destruction, or wilful damage of institutions dedicated to religion, charity, education, the arts, and sciences, historic monuments, and works of art and science
• The plunder of public or private property

Other Violations

Other violations of international humanitarian law include:

• Violations of the Hague law on international conflicts
• Infringements of the Geneva Conventions other than those classified as "grave breaches"
• Violations of common Article 3 of the Geneva Conventions and other customary rules on internal conflicts
• Violations of agreements binding upon the parties to the conflict, considered as treaty law

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