Humanitarian Law: Who Does It Protect And Apply To?

International Humanitarian Law (IHL) is a set of rules that seeks to limit the effects of armed conflict. It protects those who are not participating in hostilities and restricts the means and methods of warfare. It is a branch of public international law, which is primarily made up of treaties, customary international law, and general principles of law. IHL applies to states and non-state armed groups during an armed conflict, defining the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare. It also outlines the rights of relief for non-combatants and the responsibilities of humanitarian organisations.

Civilians

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict by protecting civilians and other non-combatants. It comprises a set of rules established by treaty or custom and seeks to protect persons and objects affected by armed conflict.

Protection of Civilians

The protection of civilians is a key focus of IHL. Civilians are defined as "any person not belonging to the armed forces", including non-nationals and refugees. The principle of distinction is a crucial aspect of IHL, requiring parties to an armed conflict to distinguish at all times between combatants and military objectives on one hand, and civilians and civilian objects on the other. Civilians must not be targeted, and parties to a conflict must take all feasible precautions to minimise harm to civilians.

The Geneva Conventions, which form the core of IHL, include specific provisions for the protection of civilians. The Fourth Geneva Convention, adopted in 1949, focuses on the protection of the civilian population during times of war. It provides that civilians shall be protected "in all circumstances", and that they must be treated humanely at all times. This includes prohibiting violence against life and person, cruel treatment, torture, taking hostages, humiliating and degrading treatment, and execution without a regular trial. Civilians are also entitled to respect for their physical and mental integrity, honour, family rights, religious convictions and practices, and their manners and customs.

The principle of humane treatment is affirmed by the International Committee of the Red Cross (ICRC) as a norm of customary international law, applicable in both international and non-international armed conflicts. The ICRC is the only institution explicitly named under IHL as a controlling authority, and it has a specific mandate to act in the event of an armed conflict, including offering impartial and neutral humanitarian services.

In addition to the Geneva Conventions, other legal instruments provide further protection for civilians. For example, the 1997 Ottawa Convention on Anti-Personnel Mines and the 2008 Convention on Cluster Munitions aim to protect civilians from the effects of these weapons, which can cause casualties long after conflicts have ended.

Rules of War

IHL also establishes rules of war that apply to all parties involved in an armed conflict. These include:

• Prohibition on attacking doctors or ambulances displaying a red cross.
• Prohibition on firing at a person or vehicle bearing a white flag, as it indicates an intent to surrender or communicate.
• Prohibition on engaging in combat without meeting certain requirements, such as wearing a distinctive uniform and carrying weapons openly.
• Prohibition on impersonating soldiers of the enemy by wearing their uniform, as it is considered unlawful perfidy.
• Prohibition on taking hostages.

Enforcement and Compliance

While IHL provides important protections for civilians, violations of these laws do occur. In recent years, there have been reports of attacks on humanitarian aid workers, blocking of aid deliveries, and targeting of civilian infrastructure such as hospitals and schools. These actions are considered serious violations of IHL and can amount to war crimes.

To address these issues, various mechanisms have been established, including UN tribunals and the International Criminal Court (ICC), which has jurisdiction over war crimes and other serious international crimes. Additionally, organisations like the ICRC play a crucial role in promoting compliance with IHL and providing humanitarian assistance to those affected by armed conflict.

In conclusion, IHL provides a comprehensive framework for the protection of civilians during armed conflicts. The principles of distinction and humane treatment are fundamental to this framework, and various legal instruments and organisations work together to enforce these rules and ensure the safety of civilians caught in the crossfire of war.

Humanitarian and medical workers

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict by laying out the responsibilities of states and non-state armed groups during such conflicts. It is designed to protect civilians and humanitarian and medical workers in any part of the world.

The protection of humanitarian and medical workers is a long-standing concern for the humanitarian community. In 2022, the Aid Workers Security Database reported 444 attacks against humanitarian workers, and the Safeguarding Health in Conflict Coalition reported 1,989 attacks against health facilities and personnel—a 45% increase from the previous year and the highest number recorded in a decade. Local and national aid and health workers account for 90% of the victims. They are the direct implementers of aid and health services, and their proximity to the most dangerous areas exposes them to the highest risks. Therefore, their protection must be considered a priority.

The growing trend of targeted violence against humanitarian and medical personnel is attributed to the politicization of aid, alongside a growing disrespect for IHL, humanitarian principles, and medical ethics. To address this issue, states have adopted various political engagements to enhance the protection of humanitarian personnel. This includes efforts to promote respect for IHL, humanitarian principles, and medical ethics, as well as initiatives to fight against impunity for attacks and provide diplomatic support to ensure safe and unimpeded access.

The 1949 Geneva Conventions and their 1977 and 2005 Additional Protocols recognize several categories of personnel involved in relief actions and grant them both general protection (that to which all civilians are entitled) and specific rights in the function of their mission. For example, to protect medical services, members of medical personnel are authorized to use the protective emblem of the Red Cross or Red Crescent, and a combatant's failure to respect these emblems is considered a war crime.

The protection of humanitarian and relief personnel has become a mandatory rule of customary law, binding on all parties to international and non-international armed conflicts. The study on the rules of customary international humanitarian law published by the International Committee of the Red Cross (ICRC) in 2005 states that "humanitarian relief personnel must be respected and protected" and that "objects used for humanitarian relief operations must be respected and protected."

Refugees, prisoners, the wounded and sick

International humanitarian law (IHL) applies to refugees, prisoners, and the wounded and sick. It seeks to limit the effects of armed conflict and lays out the responsibilities of states and non-state armed groups during such conflicts.

Refugees

Refugees are considered civilians who have lost the protection of their government. IHL interprets the concept of refugees more broadly to include the protection of civilians and population displacements caused by armed conflict. This means that refugees are entitled to receive international protection and assistance under IHL for the duration of the armed conflict.

IHL also provides special protection to ensure that refugees are not considered hostile or enemies because of their nationality, even if their nationality is that of an adverse party to the conflict. In the case that refugees find themselves in territory that is suddenly occupied by the state from which they originally fled, the occupying power may not arrest, prosecute, convict, or deport them for acts committed before the outbreak of hostilities. They must be accorded the same protection as the civilian population.

Prisoners

The Third Geneva Convention protects prisoners of war. It defines their rights and sets out detailed rules for their treatment and release. International humanitarian law also protects other people deprived of their liberty in connection with armed conflict.

Prisoners of war (POWs) are usually members of the armed forces of one of the parties to a conflict who fall into the hands of the opposing party. The detention of POWs is not a form of punishment but instead serves to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities.

POWs must be treated humanely in all circumstances and are protected against any act of violence, as well as against intimidation, insults, and public curiosity. IHL also defines the minimum acceptable conditions of detention, covering issues such as accommodation, food, clothing, hygiene, and medical care.

The Wounded and Sick

The protection of the sick and wounded is a core principle of IHL, stemming from the founding of the First Geneva Convention in 1864. The central principle is that "all wounded, sick and shipwrecked, to whichever party they belong, shall be respected and protected." Appropriate medical attention must be provided as quickly as possible without any distinction between military or civilian, or friend or foe.

Parties to a conflict must take all possible measures to search for and collect the wounded, sick, and shipwrecked, protect them against pillage and ill-treatment, and ensure their adequate care. To ensure effective help, medical and humanitarian personnel and facilities must be respected and protected in all circumstances.

IHL also protects medical transport, whether military or civilian. Under no circumstances can protected medical vehicles carry active military personnel, weapons, or ammunition. The red cross, red crescent, and red crystal emblems identify protected medical personnel and objects, and a deliberate attack on them constitutes a war crime.

Non-state armed groups

International humanitarian law (IHL) applies to non-state armed groups, which are defined as non-state parties to an international or non-international armed conflict. There is no internationally agreed definition of non-state armed groups in international treaties. However, humanitarian law uses the term "armed forces" to designate and define combatants fighting within a state party to a conflict.

In non-international armed conflicts, Additional Protocol II to the 1949 Geneva Conventions defines non-state armed groups as "dissident armed forces or other organized armed groups" fighting regular armed forces or each other within the territory of one or more states. To be considered parties to the conflict, these groups must fulfil specific conditions:

• Be under a responsible command
• Exercise control over a part of the territory
• Be capable of carrying out sustained and concerted military operations and implementing the Protocol

These criteria distinguish armed conflicts from situations of internal disturbances or tensions, where confrontations are not organized by identifiable commands. They also emphasize the obligations of non-state armed groups to adhere to humanitarian law and rules of conduct in their combat actions.

The UN Office for the Coordination of Humanitarian Affairs (OCHA) provides further elements of evaluation for non-state armed groups:

• The potential to employ arms to achieve political, ideological, or economic objectives
• Existence outside formal military structures of states, state alliances, or intergovernmental organizations
• Lack of control by the state(s) in which they operate
• Possession of group identity and a chain of command
• Primary motivation by political goals and operation outside effective state control

In international armed conflicts, humanitarian law recognizes a specific status for national liberation movements fighting against colonial domination, alien occupation, or racist regimes. Additional Protocol I of 1977 assimilates these situations to international armed conflicts and grants combatant status to group members if they carry arms openly and respect the laws of war.

It is crucial to distinguish national liberation movements from other non-state armed groups fighting their governments or other groups in non-international armed conflicts. Additionally, non-state armed groups differ from Private Military Companies, which intervene at the request of a conflict party rather than on their own initiative.

International criminal law has clarified the definition of armed groups, emphasizing the required level of organization. While a hierarchical military structure is not necessary, factors such as a command structure, disciplinary rules, headquarters, territorial control, access to weapons, and the ability to plan and execute military operations define an "organized armed group."

As parties to a conflict, non-state armed groups must respect certain obligations under international humanitarian law. Their members benefit from fundamental IHL guarantees during their participation in hostilities and if they are hors de combat. However, states have not granted them combatant status, resulting in a hybrid status under the jurisdiction of domestic law, which considers them criminals.

The status of non-state armed groups in humanitarian law reflects the legal and political asymmetry between them and states. The law of non-international armed conflicts does not recognize combatant status or the rights associated with it, such as prisoner-of-war status. This refusal subjects non-state armed groups to domestic law, treating them as criminals for taking up arms against the state.

Paradoxically, under IHL, members of non-state armed groups are categorized as civilians but lose most protections against direct attack while actively participating in hostilities. However, the non-recognition of combatant status does not exempt them from respecting IHL as parties to the conflict, and they remain entitled to specific protections provided by IHL for persons hors de combat.

The Interpretive Guidance on the Notion of Direct Participation in Hostilities, published by the ICRC in 2010, distinguishes between civilians who participate in hostilities and members of non-state armed groups. It recommends protecting civilians unless they directly take part in hostilities, while members of non-state armed groups lose protection for assuming a continuous combat function.

Humanitarian law differentiates between "Parties to the conflict" and "High Contracting Parties," with the latter referring to states that have signed the Geneva Conventions. In situations involving non-state armed groups, there is no reciprocity, and states remain bound by their obligations towards non-state parties, which cannot sign the conventions.

Common Article 3 of the Geneva Conventions, applicable in non-international armed conflicts, sets out mandatory obligations and minimum guarantees for all parties to the conflict, regardless of their nature. It encourages parties to implement humanitarian law provisions through special agreements without affecting their legal status. Additional Protocol II further elaborates on the obligations and guarantees of non-state armed groups in non-international armed conflicts.

The development of customary international humanitarian law creates universal obligations independent of state ratification. The Customary International Humanitarian Law Study published by the ICRC in 2005 extended most rules applicable to international armed conflicts to non-international ones, resulting in a substantial body of rules applicable to non-state armed groups.

Despite perceptions of non-state armed groups as unwilling to respect IHL due to their absence during its codification, this view overlooks the diversity and varying motivations of these groups. While domestic laws criminalize them, non-state armed groups seek international guarantees and are often not opposed to IHL rules as long as they do not hinder their military operations. Their tendency to respect or violate IHL is linked to their choice of means to weaken their adversaries, even if illegal.

International criminal law addresses the legally binding character of humanitarian law rules on non-state armed groups, holding individuals and their superiors responsible for the most serious violations, constituting war crimes. War crimes and crimes against humanity include acts committed by members of non-state armed groups in all types of conflicts.

International Humanitarian Law (IHL) does not grant a particular status to

Military commanders

International humanitarian law, also known as the law of war or the law of armed conflict, seeks to limit the effects of armed conflict by protecting non-combatants and restricting the means and methods of warfare. While IHL does not stipulate the legitimacy of a conflict's commencement, it regulates the behaviour of parties once it has started.

Commanders must do everything feasible to spare civilians and civilian objects when planning or authorising attacks. They are responsible for ensuring that military actions are carried out in accordance with international law and that the practices of their forces align with the rules of war. Disciplinary measures, such as suspension, exclusion, or redeployment, may be necessary to prevent the commission of atrocities by forces under their command.

The principle of proportionality, a fundamental norm of IHL, protects civilians and civilian objects from incidental harm that would be excessive in relation to the anticipated military advantage. Military commanders must ensure that attacks are directed solely against legitimate military targets, distinguishing between enemy combatants and protected persons at all times.

The duties of military commanders under IHL extend beyond the punishment of war crimes, crimes against humanity, or genocide. They are responsible for the prevention, investigation, and punishment of activities by their subordinates that may fall below the threshold of international crimes. This includes disciplinary sanctions for violations of IHL.

The failure of a military commander to fulfil these obligations can result in their own criminal or disciplinary liability for their acts and omissions, as well as for the crimes committed by their subordinates. International criminal tribunals have extended the duties and responsibilities of commanders beyond formal legal hierarchies and official armed forces to cover the diversity of situations in armed conflicts.

In summary, military commanders play a critical role in upholding IHL by ensuring compliance with its rules and principles, preventing violations, and holding perpetrators accountable through disciplinary or penal measures. Their duties encompass the protection of civilians, proportionality in attacks, and the prevention and punishment of violations by their forces.

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