Conflict is an inevitable phenomenon in any human society. This reality transcends the ancient period right up to the present era of humanity’s existence in organized groups. The aforestated fact is not just limited to the minute units of human existence but is also a visible feature in the course of relations between nations and persons (natural and artificial) of different nationalities at the international level.
In the course of such transnational relations, conflicts are likely to ensue, and in some instances, such conflicts escalate beyond the bound of amicable reconciliation. Hence, the adoption of brute force becomes the only way such differences are hashed out. In order to minimize the impact of such hostilities on non-military personnel, and ameliorate the damage concomitant with such armed conflicts, the law of nations has sought means to address this concern. It is to this end that international humanitarian law was birthed.
Sometimes referred to as the “law of armed conflict” or the “law of war”, the scope of international humanitarian law revolves basically around the design to mitigate some of the horrors of warfare. It is on the premise of the above purpose that Crowe and Weston-Scheuber define International humanitarian law as “the body of international law governing the conduct of armed conflicts.
This definition attests to the fact that the primary goal of international humanitarian law is not to bring an end to armed conflicts globally, nor suggest instances where force should be resorted to, rather, its purpose is to regulate how such armed conflicts are embarked upon. The limitations set by the principles of international humanitarian law are geared at enhancing the protection of non-military persons as well as their properties from destruction.
International humanitarian law is one of the oldest branches of international law, and a complex and diverse area of law, covering matters such as the treatment of civilians in times of armed conflict, permissible means and methods of waging such armed conflicts, instruction for occupying forces, rules of protection of certain of property, such as cultural property and natural environment, and rules regarding implementation, enforcement and accountability.
International humanitarian law is defined by certain distinctive features. These features include the fact that provisions of international humanitarian law only apply when other laws aimed at enhancing peace between individuals, communities and states fail, hence giving rise to armed conflicts; it is also concerned with the protection of the life and dignity of persons considered as enemies to parties to an armed conflict.
As a core part of public international law, International humanitarian law prohibits and regulates how armed conflicts should be conducted. Its substantive rules try to limit the use of violence in armed conflicts by prohibiting the use of violence against persons, not or no longer directly participating in hostilities (therefore all persons in the power of the enemy must be treated humanely at all times); and restricting the level of violence to the amount necessary to achieve the only legitimate aim of the conflict, which is to weaken the military potential of the enemy.
The law of armed conflict does not apply to every situation in which armed force or other violence is employed; it applies to only certain kinds of conflict. The scope of its application does not extend to Non-International Armed Conflict(NIAC), that is, armed conflicts limited to the boundaries of a particular state, without an international impact.
Broadly speaking the full panoply of IHL treaty law, other than Additional Protocol II, will apply in an international armed conflict, while a non-international armed conflict (NIAC) will be subject only to Common Article 3 of the 1949 Geneva Conventions, Additional Protocol II, and laws of the more recent treaties on the means and methods of warfare.
International humanitarian law is governed by some fundamental principles. These principles form the foundation upon which the substantive rules of international law thrive. These principles are:
- The principle of distinction.
- The principle of military necessity.
- The principle of discrimination.
- The principle of proportionality.
- The principle of neutrality.
- The prohibition on causing unnecessary suffering and superfluous injury.
These principles, though not derived directly from treaties, contain the essentials of international humanitarian law, and identify some of the problem areas. Like most other branches of international law, international humanitarian law is marked by the absence of third party adjudication and enforcement. There is no judge and no police. Its respect depends on self-application by the addresses – states, armed groups and individuals in armed conflicts.
As a result of the absence of a formidable body to enforce these laws of war laid down by international humanitarian law, compliance to its dictates has over the years been flouted and ignored on several occasions. Examples of such instances where the laws of war have been flagrantly disobeyed can be seen in the genocide in Rwanda, the preponderance of ISIS over territories in Syria and Iraq, recent incidents of violence in Guantanamo Bay and Abu Ghairab, etc.
International humanitarian law derives its principles and doctrines from three basic sources. These sources are treaties i.e. Geneva Conventions of 1949, the 1977 Additional Protocols, and customary international law. All these sources shall be extensively expounded upon in the subsequent parts of this study.
Where is international humanitarian law to be found?
A major part of international humanitarian law is contained in the four Geneva Conventions of 1949. Nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts. Other agreements prohibit the use of certain weapons and military tactics and protect certain categories of people and goods. These agreements include:
- the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;
- the 1972 Biological Weapons Convention;
- the 1980 Conventional Weapons Convention and its five protocols;
- the 1993 Chemical Weapons Convention;
- the 1997 Ottawa Convention on anti-personnel mines;
- the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
Many provisions of international humanitarian law are now accepted as customary law – that is, as general rules by which all States are bound.
When does international humanitarian law apply?
International humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting. International humanitarian law distinguishes between international and non-international armed conflict. International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I.