Humanitarian Law: When Does It Apply?

International humanitarian law (IHL) applies only to situations of armed conflict. There are two types of armed conflict: international armed conflict (IAC) and non-international armed conflict (NIAC). IHL seeks to limit the effects of armed conflict and lays out the responsibilities of states and non-state armed groups during conflict. It requires, among other things, the protection of civilians, refugees, prisoners, and the wounded and sick. It also prohibits and regulates the use of certain weapons and methods of warfare.

International armed conflict

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict by protecting those who are not participating in the conflict. It is also known as the "law of armed conflict" or the "law of war".

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 violated by warring parties. IHL is distinct from international human rights law, which governs the conduct of a state towards its people.

IHL distinguishes between 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.

The Geneva Conventions of 1949 and their Additional Protocols are some of the main sources of IHL. The Conventions and Protocols specifically protect people who are not taking part in the hostilities, such as civilians, medical and aid workers, and those who are no longer fighting, including wounded, sick and shipwrecked soldiers, and prisoners of war.

The four Geneva Conventions are:

• The First Geneva Convention protects wounded and sick soldiers on land.
• The Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea.
• The Third Geneva Convention applies to prisoners of war.
• The Fourth Geneva Convention affords protection to civilians, including in occupied territories.

Additional Protocols to the Geneva Conventions include:

• Additional Protocol I (1977): Relating to the Protection of Victims of International Armed Conflicts.
• Additional Protocol II (1977): Relating to the Protection of Victims of Non-International Armed Conflicts.
• Additional Protocol III (2005): Relating to the Adoption of an Additional Distinctive Emblem.

IHL applies only during times of armed conflict and equally to all sides, regardless of who started the fighting. It does not cover internal tensions or disturbances such as isolated acts of violence.

IHL requires, among other things:

• The rapid and unimpeded passage of humanitarian aid during armed conflicts.
• The freedom of movement for humanitarian workers in conflict areas.
• The protection of civilians (including medical and humanitarian workers) and refugees.
• The protection of prisoners and the wounded and sick.

IHL is designed to protect civilians and humanitarian and medical workers during armed conflicts in any part of the world. It is inspired by considerations of humanity and the mitigation of human suffering. It seeks to balance humanitarian concerns and military necessity, subjecting warfare to the rule of law by limiting its destructive effects.

Serious violations of IHL are called war crimes.

Non-international armed conflict

International humanitarian law (IHL) applies only to situations of armed conflict. Non-international armed conflicts (NIAC) are usually internal conflicts that take place within the territory of a single country. They occur between state armed forces and organised armed groups, or between such groups within a state.

The majority of today's armed conflicts are non-international armed conflicts. The classification of a conflict as an NIAC can be complicated, as the threshold of violence and organisation required to define a situation as an armed conflict is significantly higher than what would be needed for an international armed conflict (IAC). For instance, internal disturbances or tensions, such as riots, demonstrations, and isolated or sporadic acts of violence, do not qualify as armed conflicts.

Case law, especially by the International Criminal Tribunal for the Former Yugoslavia (ICTY), has clarified the elements of an NIAC. A non-international armed conflict exists when there is protracted armed violence between governmental authorities and organised armed groups, or between such groups within a state. Thus, there are two key elements needed for an NIAC: protracted armed violence, and the involvement of an organised armed group.

The rules that apply to an NIAC are different from those that apply to an IAC. A more limited range of rules applies to NIACs, as set out in Common Article 3 of the four Geneva Conventions, as well as in Additional Protocol II (when applicable).

Protection of civilians

International Humanitarian Law (IHL) is a set of rules that seek to limit the effects of armed conflict and protect victims, including civilians and those no longer taking part in hostilities. The protection of civilians is a cornerstone of IHL, which extends to their public and private property.

IHL identifies and protects particularly vulnerable civilian groups, such as women, children, the displaced, the sick, the wounded, and the elderly. It prohibits forced displacements by intimidation, violence, or starvation, and requires states to take all appropriate steps to prevent family separation and to take action to re-establish family contact by providing information and facilitating tracing activities.

IHL provides that civilians under the power of enemy forces must be treated humanely in all circumstances, without any adverse distinction. They must be protected against all forms of violence and degrading treatment, including murder and torture. Moreover, in the case of prosecution, they are entitled to a fair trial affording all essential judicial guarantees.

The protection of civilians also extends to those trying to help them, such as medical units and humanitarian or relief bodies providing essentials like food, clothing, and medical supplies. The warring parties are required to allow access to such organizations. The Fourth Geneva Convention and Additional Protocol I specifically require belligerents to facilitate the work of the International Committee of the Red Cross (ICRC).

The fundamental rule of IHL in conflict is that all parties must distinguish, at all times, between combatants and civilians. Civilians and civilian objects must never be the target of attack; parties may only target combatants and military objectives. IHL requires that parties to the conflict must take all feasible precautions to minimize harm to civilians and civilian objects. If an attack fails to discriminate between combatants and civilians or is expected to cause disproportionate harm to the civilian population compared to the military gain, it is prohibited.

Under IHL, anyone taken into custody, such as prisoners of war, must be treated humanely. Taking hostages and using people as "human shields" are prohibited. In the case of an attack that may affect the civilian population, the laws of war require parties to give "effective advance warning" unless the situation does not permit it. However, giving warning does not absolve parties from the requirement to protect civilians. Civilians who do not evacuate following a warning are still protected and must not be targeted.

IHL governs the conduct of hostilities and is distinct from the law that governs the decision to use force. It applies during an armed conflict or an occupation, when a state has effective control, without consent, of a territory over which it has no sovereign title. Regardless of any claims about annexation, the occupying state does not acquire sovereignty over the occupied territory under IHL. The occupying power must ensure the humane treatment of the population and provide for their basic needs, including food, water, and medical care.

IHL covers a broad range of issues, and its implementation requires coordination and support from many organizations. Some states have created working groups to help the government implement and spread knowledge of IHL. For example, Canada established a National Committee on International Humanitarian Law in 1998, and the Canadian Red Cross is a member of the Secretariat.

IHL violations have significantly increased in the past 10 years, and the risk of humanitarians and medical workers being attacked has also risen. As most humanitarian action takes place in areas of armed conflict, violations of IHL greatly hinder the ability to fulfil humanitarian aid objectives and endanger the security of humanitarian partners.

Protection of humanitarian and medical workers

The protection of humanitarian and medical workers is a crucial aspect of international humanitarian law (IHL). These individuals play a vital role in providing aid and healthcare services to populations in need, often navigating high-risk environments amidst violent conflicts. Unfortunately, their security and safety are frequently threatened, with a growing trend of targeted violence against them.

Humanitarian and medical workers are protected under IHL, as well as the Geneva Conventions of 1949 and their additional protocols. The conventions establish a special system of protection for medical personnel, ensuring their safety and independence during armed conflicts and situations of violence. They are authorised to wear specific protective emblems, such as the Red Cross or Red Crescent, and combatants must respect these emblems. Failure to do so is considered a war crime.

The World Medical Association (WMA) calls upon governments and all parties involved in situations of violence to ensure the safety, independence, and personal security of healthcare personnel at all times. This includes enabling them to attend to injured and sick patients, regardless of their role in a conflict, and allowing them to carry out their medical duties freely and independently.

The protection of humanitarian and medical workers is closely linked to the concept of humanitarian space. Ensuring their safety and security is essential for delivering life-saving aid and healthcare in risky and remote areas. The humanitarian community, states, and non-governmental organisations (NGOs) have been working together to enhance the protection of these workers through various initiatives and campaigns, such as the #NotATarget campaign.

To improve the protection of humanitarian and health workers, several recommendations have been proposed:

• Ensure the implementation of robust security risk management for NGOs, with a focus on local and national organisations.
• Address the politicisation of aid and the growing disrespect for IHL, humanitarian principles, and medical ethics.
• Scale up data collection, information sharing, and analysis systems to enhance field security and inform policy change.

Humanitarian aid during armed conflict

International humanitarian law (IHL) applies only to situations of armed conflict. There are two types of armed conflict: international armed conflicts (IAC) and non-international armed conflicts (NIAC). The classification can become complicated, however, as in some situations, both an IAC and NIAC can exist in one location, or one can develop into the other depending on the conflict's evolution.

Under IHL, different rules apply to the different types of conflict. Therefore, classifying the type of conflict is crucial to knowing which rules apply. There tends to be much more codification of rules applicable to IACs, compared to NIACs.

IHL recognises that the civilian population of a state affected by an armed conflict is entitled to receive humanitarian assistance. It regulates the conditions for providing humanitarian assistance in the form of food, medicines, medical equipment, or other vital supplies to civilians in need.

IHL requires, among other things:

• The rapid and unimpeded passage of humanitarian aid during armed conflicts
• The freedom of movement for humanitarian workers in conflict areas
• The protection of civilians (including medical and humanitarian workers)
• The protection of refugees, prisoners, and the wounded and sick

As most humanitarian action takes place in areas of armed conflict, violations of IHL greatly hinder the ability to fulfil humanitarian aid objectives and also endanger the security of humanitarian partners.

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