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Thursday, June 21, 2018


(First Published on Volume 01 Issue 01, May 2016)
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Contemporary Challenges for IHL

In contemporary armed conflicts civilians are the primary victims of violations of IHL committed by both State and non-State parties. The nature of contemporary armed conflicts continues to provide challenges for the application and respect of IHL in a number of areas, ranging from the classification of armed conflicts to the use of new technologies. There is a need to understand and respond to these challenges to ensure that IHL continues to perform its protective function in situations of armed conflict.
The increasing complexity of armed conflicts has given rise to discussions over the notion and typology of armed conflicts, including whether the IHL classification of conflicts into international (IAC) and non-international (NIAC) is sufficient to encompass the types of armed conflicts taking place today. The ICRC believes that to be the case, while recognizing that there is an increasing number of different factual scenarios that may be classified as NIAC.

The interplay between IHL and human rights law continues to have practical consequences on the conduct of military operations. The relationship between human rights law and IHL impacts issues related to detention, as well as to the use of force, in both international and non-international armed conflicts, as well as the extraterritorial targeting of persons.

In contemporary armed conflicts the protective scope of IHL remains of utmost concern. In many situations States are unable or unwilling to meet the basic needs of civilians and in such situations IHL provides that relief actions may be undertaken by other actors, including humanitarian organizations, subject to the agreement of the State. However, there remain many obstacles to humanitarian access, including military, political and security-related concerns, which hinder the provision of assistance to civilians in need.

In recent years extraterritorial military operations have given rise to new forms of military presence in the territory of a State and refocused attention on the rights and duties of an occupying power, the regulation of the use of force in occupied territory and the applicability of the law of occupation to UN forces. The responsibilities and tasks assigned to multinational forces have also evolved to encompass a spectrum of operations including conflict prevention, peace-keeping, peace-making, peace-enforcement and peace-building. The multifaceted nature of these operations means multinational forces are more likely to use force and raises the question of when and how IHL will apply to their actions.

A wide array of new technologies has entered the modern battlefield. Cyberspace has opened up a potentially new war-fighting domain. Remote controlled weapons systems such as drones are increasingly being used by the parties to armed conflicts. Automated weapons systems are also on the rise, and certain autonomous systems such as combat robots are being considered for future use on the battlefield. There can be no doubt that IHL applies to these new weapons and the employment of new technology in warfare. However, these new means and methods of warfare pose legal and practical challenges in terms of ensuring their use complies with existing IHL norms, and also that due regard is given to the foreseeable humanitarian impact of their use.

Hostilities pitting non-State armed groups operating within populated areas against government forces using far superior military means are also a recurring pattern, exposing civilians and civilian objects to the effects of hostilities. The intermingling of armed groups with civilians, in violation of IHL, has by some armies been used as a justification to by-pass the taking of all possible precautions to minimise risks to civilians, as required by IHL. In this context, the effects of the use of explosive weapons in densely populated areas on civilians and civilian structures continue to be of concern.

An ongoing challenge to the protection of civilians is the inadequate regulation of the availability and the misuse of conventional weapons. Under the Geneva Conventions and customary international law, States have an obligation to ensure respect for IHL. This includes a responsibility to ensure that the arms and ammunition they transfer does not end up in the possession of persons who are likely to use them to violate IHL. An Arms Trade Treaty, which the ICRC supports, is meant to address some of those concerns.
A recent challenge for IHL has been the tendency of States to label as ‘terrorist’ all acts of warfare committed by non-State armed groups against them, especially in non-international armed conflicts. While armed conflict and acts of terrorism are different forms of violence governed by different bodies of law, they have come to be perceived as almost synonymous due to constant conflation in the public domain. The use of the term ‘terrorist act’ in the context of armed conflict causes confusion between the two separate bodies of law and may lead to a situation where non-State armed groups disregard IHL norms because of a perception that they have no incentive to abide by the laws and customs of war. The designation of some non-State armed groups as ‘terrorist groups’ also has significant implications for humanitarian engagement and may impede humanitarian action.
IHL is continually challenged by the evolution of contemporary armed conflict. Achieving greater protection for civilians in armed conflict is dependent on the respect, implementation and enforcement of IHL. It is the constant priority of the ICRC to ensure that IHL is able to adequately address the realities of modern warfare and provide protection to victims of armed conflict.

Essentials of IHL
The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solely against military objectives. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavorable distinction whatever. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting. Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering. The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared. The red cross or red crescent on a white background is the distinctive sign indicating that such persons and objects must be respected. Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must beprotected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.
These rules, drawn up by the ICRC, summarize the essence of international humanitarian law. They do not have the authority of a legal instrument and in no way seek to replace the treaties in force. They were drafted with a view to facilitating the promotion of IHL.

Humanitarian Law before its Codification
It would be a mistake to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the starting point of international humanitarian law as we know it today. Just as there is no society of any sort that does not have its own set of rules, so there has never been a war that did not have some vague or precise rules covering the outbreak and end of hostilities, as well as how they are conducted.

“Taken as a whole, the war practices of primitive peoples illustrate various types of international rules of war known at the present time: rules distinguishing types of enemies; rules determining the circumstances, formalities and authority for beginning and ending war; rules describing limitations of persons, time, place and methods of its conduct; and even rules outlawing war altogether.” (Quincy Wright)

The first laws of war were proclaimed by major civilizations several millennia before our era: 

“I establish these laws to prevent the strong from oppressing the weak.” (Hammurabi, King of Babylon)

Many ancient texts such as the Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the Viqayet – a text written towards the end of the 13th century, at the height of the period in which the Arabs ruled Spain – contains a veritable code for warfare. The 1864 Convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered laws and customs of war protecting the wounded and those caring for them.

The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force.
It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just. In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter. The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum (law on the use of force or law on the prevention of war).

Measures available for implementation of IHL
The following implementation measures must be taken.
Preventive measures, based on the duty of States to comply with humanitarian law.
They include:
• spreading knowledge of IHL;
• training qualified personnel to facilitatethe implementation of IHL, and the appointment of legal advisers in the armed forces;
• adopting legislative and statutory provisions to ensure compliance with IHL;
• translating the texts of the Conventions.

Measures for monitoring compliance with the provisions of humanitarian law for the duration of the conflict:
  • action by the Protecting Powers or their substitutes;
  • ICRC action
Repressive measures, based on the duty of the parties to the conflict to prevent and put a halt to all violations. Mechanisms for repression include:

  • the obligation for the national courts to repress grave breaches considered as war crimes (for international tribunals);
  • the criminal liability and disciplinary responsibility of superiors, and the duty of military commanders to repress and denounce offences;
  • mutual assistance between States on criminal matters.
Apart from the fact that they are inherent in any consistent legal construct, these repressive measures also serve as a deterrent. There are other implementation measures, which encompass prevention, control and repression; the last two are derived chiefly from the duty of States to ensure respect for humanitarian law. They include:

  • the enquiry procedure;
  • the International Fact-Finding Commission;
  • the examination procedures concerning the application and interpretation of legal provisions;
  • cooperation with the United Nations.
Diplomatic efforts and pressure from the media and public opinion also help ensure implementation of IHL.

International humanitarian law and international human rights law (hereafter referred to as human rights) are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle.
Humanitarian law applies in situations of armed conflict, whereas human rights, or at least some of them, protect the individual at all times, in war and peace alike.
However, some human rights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL because it was conceived for emergency situations, namely armed conflict.
Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to everyone. Theirprincipal goal is to protect individuals from arbitrary behaviour by their own governments. Human rights law does not deal with the conduct of hostilities. The duty to implement IHL and human rights lies first and foremost with States.
Humanitarian law obliges States to take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are bound by human rights law to accord national law with international obligations. IHL provides for several specific mechanisms that help its implementation. Notably, States are required to ensure respect also by other States. Provision is also made for an enquiry procedure, a Protecting Power mechanism, and the International Fact- Finding Commission. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules.
Human rights implementing mechanisms are complex and, contrary to IHL, include regional systems. Supervisory bodies, such as the UN Commission on Human Rights, are either based on the UN Charter or provided for in specific treaties (for example the Human Rights Committee, which is rooted in the International Covenant on Civil and Political Rights of 1966).
The Human Rights Commission and its Sub Commissions have developed a mechanism of “special rapporteurs” and working groups, whose task is to monitor and report on human rights situations either by country or by topic. Six of the main human rights treaties also provide for the establishment of committees (e.g. the Human Rights Committee) of independent experts charged with monitoring their implementation.
Certain regional treaties (European and American) also establish human rights courts. The Office of the UN High Commissioner for Human Rights (UNHCHR) plays a key part in the overall protection and promotion of human rights. Its role is to enhance the effectiveness of the UN human rights machinery and to build up national, regional and international capacity to promote and protect human rights and to disseminate human rights texts and information.


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