How does International Humanitarian Law prevent unnecessary suffering in conflicts?
I - WHAT IS INTERNATIONAL HUMANITARIAN LAW (IHL)?
The International Committee of the Red Cross (ICRC) defines International Humanitarian Law (IHL) as:
"International rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict[1]."
IHL (ius in bello) regulates the conduct of armed conflict after the parties involved have already resorted to force. It is different from the body of law which stipulates circumstances when war is permissible (ius ad bellum). Its central objectives are twofold: firstly, to limit or prohibit the use of certain means and methods of warfare and secondly, to establish the protection of victims of war.
i) Origins
The rules of IHL are a reassertion and evolution of the traditional laws of war. Although the dominant discourse privileges European cultures and philosophies, in discussions on the genealogy of IHL, regulations on the conduct of hostilities have existed in almost all civilisations around the world. For instance, the prohibition against the poisoning of wells, which has now been codified in modern treaties, existed in early African cultures.
Nonetheless, modern IHL is often traced back to the experiences of a Geneva businessman, Henry Dunant, in the aftermath of the 1859 battle of Solferino. Dunant was struck by the suffering of the wounded left unattended on the battlefield and he sought to help them with the assistance of the women in the vicinity.
In 1862, he published a book entitled A Memory of Solferino based on the events he had witnessed, and wherein he suggested remedies for this suffering. Such remedies included a proposal for a neutral organisation to protect the wounded during armed conflict. European states welcomed Dunant's findings and in 1863, a committee was established to look at the feasibility of his proposals. This was the precursor to the International Committee of the Red Cross (ICRC).
The ICRC has contributed significantly to the development of IHL. It began the process which led to the enactment of the Geneva Convention of 1864 and the revisions in 1906, 1929, 1949 and 1977.
ii) Sources of IHL
The primary sources of IHL are the four Geneva Conventions of 1949 and the two 1977 Additional Protocols[2]. There are many other relevant sources of IHL including those that limit the means and methods of warfare, including the earlier Hague Conventions, international treaties on particular categories of weaponry and the rules of customary international law. Nonetheless, the 1949 Geneva Conventions and their 1977 Additional Protocols are still the principal codes in IHL.
In 1998, the ICRC reviewed the rules enshrined in the Conventions and their optional protocols, and placed them into seven fundamental concepts related to armed warfare. These key principles can be noted as: 1) Non-combatants should not be maltreated, but rather deserve special protection; 2) Killing or injuring an enemy that is wounded, sick or surrenders and becomes a non-combatant is prohibited; 3)
The party to the conflict which has the injured and sick in its power has a duty to collect and care for them. This protection is extended to the medical personnel - transport and equipment used for protecting the wounded and the sick are to be identified by the Red Cross or Crescent emblems; 4) Prisoners of war and civilians have fundamental rights and must be cared for and allowed to communicate with their families. Attacking them or making them objects of reprisals is forbidden; 5) Torture, inhuman and degrading treatment is prohibited and everyone has a right to be heard by a competent court and not to be held liable for an act which he/she has not committed; 6) Weapons and methods of warfare which can cause preventable losses and disproportionate suffering are prohibited; and 7) Attacks must be directed exclusively at military objectives and not civilian populations and property[3].
iii) Application of IHL
IHL imposes legal duties on those states that have consented to be bound by them through the process of accession or ratification. By 2004, all 53 African states had ratified the primary international humanitarian law (IHL) treaties. South Sudan followed suit in July 2012[4]. Thus African states have consented to respect and ensure respect for IHL during peacetimes and in or after armed conflict.
As is characteristic of all international law, there is no central body that enforces IHL. Nonetheless, a range of judicial and non-judicial mechanisms for monitoring compliance and punishing violators of IHL do exist.
II - INTERNATIONAL AND NON-INTERNATIONAL CONFLICTS
IHL draws a distinction between international and non-international armed conflicts. This division has a political basis. Historically, states were the only subjects of international law and they were not willing to extend the protection of international law to rebels or to legalise the resort to armed warfare by non-state actors.
Additionally, international law did not allow for interference in a state's domestic areas and permitted states to apply the necessary measures for quashing dissent and maintaining the territorial integrity of the state. Consequently, during international conflicts all aspects of IHL are applicable, but in contrast, non-international armed conflicts are only governed by a limited part of the law.
i) International conflict
International armed conflict refers to those wars involving two or more states and to armed conflicts in which peoples are fighting for the right to external self-determination[5]. African examples in this regard include various African wars of liberation and notably the conflict within the Democratic Republic of Congo (DRC) in 1998, which saw the intervention of armed forces from Angola, Zimbabwe, Rwanda, and Uganda. These interstate conflicts are regulated by an expansive array of international and regional legal instruments including the four Geneva Conventions and Additional Protocol I.
ii) Internal conflict
An internal conflict or non-international armed conflict involves a state's army and armed dissidents within a state or a situation where armed groups within the territory of a state are at war with each other. A high threshold of intensity is required for any IHL to apply as IHL does not apply to "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature[6]".
Commonly cited examples of African internal conflicts include the Rwandan civil war and the Lord's Resistance Army (LRA) insurgency in Uganda. However, it may be argued that this narrow focus on the definition of an internal conflict as confined to the territory of a state may be misleading as most of the African conflicts characterised as internal include some form of foreign involvement. Such involvement is either through the cross-border activities of the relevant non-state actors or from intervention by third parties. Examples include the intervention in Rwanda by France, Zaire, Uganda and Burundi and when the LRA's activities spilled over into Sudan.
As noted, historically, because of fears of threats to sovereignty, internal armed conflicts were subject to customary international law and limited treaty rules of humanitarian law, as stipulated in common Article 3 of the Geneva Conventions and Additional Protocol II.
The adoption of Common Article 3 was an acknowledgement by the international community that humanitarian issues resulting from internal armed conflicts required a certain international reaction. However, Common Article 3 lacked clarity on the extent of its protection. For example, it does not specify protection to be accorded to medical personnel, transport and equipment used for protecting the wounded and the sick and the role of the Red Cross or Crescent emblems. It is silent on the treatment of prisoners of war and the permissible methods and means of warfare.
Also, the article does not expressly mention the protection of civilians and civilian property. There are also no directives on relief operations during internal conflicts. Thus, Additional Protocol II was adopted to deal with these limitations. Whilst it is more detailed than common Article 3, it is inadequate in comparison with Protocol I (which deals with international armed conflicts). This is because Additional Protocol II does not deal with restrictions on means and methods of combat. Neither does it provide for criminal sanctions comparable to grave breaches provisions[7].
Nonetheless, nowadays the scope of customary international humanitarian law, which applies to internal armed conflict, has increased and internal conflicts are also increasingly regulated through the use of International Criminal Law (ICL) and International Human Rights Law (IHRL). It should be noted that even though there is a convergence in the values, implementation and enforcement of IHL and IHRL, these are two different bodies of public international law regulated by different standards. In addition, whereas IHRL applies in peacetime and has provisions that can be suspended during war if the government declares a state of emergency, this is not the case with IHL.
III - ENFORCEMENT
There is no general mechanism for the enforcement of IHL. Both belligerents and third parties are responsible for monitoring the implementation and enforcement of IHL. The ensuing dynamics often persuade warring parties to avoid disobeying the rules of war and thus to enforce compliance with IHL.
i) Peacetime implementation measures
African states are under an international legal obligation to disseminate and incorporate IHL into their domestic legislation. In particular, Common Articles 49, 50, 129 and 146 of the four Geneva Conventions state that:
"The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention..."[8]
Thus the IHL system is based on three key obligations, namely: 1) to enact relevant domestic legislation; 2) to pursue alleged violators of IHL; and 3) to prosecute such suspects.
Compliance with these norms can only be anticipated if civilians, members of armed forces and authorities are familiar with its contents. In accordance with Article 47 of the 1949 Geneva Convention I, Article 48 of the 1949 Geneva Convention II, Article 127 of the 1949 Geneva Convention III and Article 144 of the 1949 Geneva Convention IV:
"The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries and, in particular, to include the study thereof [if possible] in their programmes of ... civilian instruction, so that the principles thereof may become known to the entire population"[9].
Thus, there are military and civilian channels for making IHL known. In practice, some African states have produced training manuals for the military, and set up IHL committees which advise the government in discharging its international obligations, though resource constraints have meant that IHL receives less priority. However, IHL is still relatively unknown in Africa - although recently a number of African universities have included IHL in their curriculums[10].
ii) Implementation during Armed Conflict: Protecting Powers and the International Committee of the Red Cross (ICRC)
Parties to an armed conflict are obliged to appoint a 'protecting power' to safeguard their interests[11]. This third party ensures that IHL is respected, and protects the interests of the wounded, prisoners and civilians. In the 2011 Libyan Crisis, the United States appointed Turkey to safeguard its interests, but otherwise the protecting power measure is rarely used in African conflicts. Apart from the Libyan example, the only other occasion when a protecting power was appointed in an African armed conflict was during the Suez Canal Crisis of 1956. Nonetheless, in instances when there is no protecting power, parties to a conflict can accept the ICRC or any other able and efficient organisation to monitor compliance with IHL[12].
The ICRC is an impartial humanitarian organisation guided by the principles of neutrality and confidentiality[13] and is often a substitute for a protecting power in armed conflicts. The special status and specific tasks assigned to the ICRC are recognised in the Geneva Conventions and their Additional Protocols. The ICRC monitors the observation of the rights of protected persons (prisoners of war, civilian internees, the wounded, etc.), provides humanitarian relief and acts as a neutral intermediary between the parties to a conflict. It also provides its 'good offices' function to assist in the creation of hospital and safety areas. The ICRC is very active in Africa[14].
iii) Third Party Enforcement
The United Nations, African regional and sub-regional organisations all have a role in the enforcement of IHL. African Organisations, which include the African Union (AU), various regional economic communities, and African civil society and non-government organisations involved in humanitarian work, often work in partnership with the ICRC and the UN in humanitarian diplomacy initiatives[15].
However, the role of the UN Security Council in this regard is controversial as the organisation has been criticised for being selective and opportunistic. Also, some of the mechanisms adopted by the UN, in particular, sanctions and military intervention have in practice led to further violations of IHL instead of enforcing compliance.
On some occasions the UN has clashed with African regional organisations in its approach, whilst on others it has collaborated with both African regional and sub-regional organisations in the enforcement of IHL. For example, the AU opposed the UN Security Council's referral of Darfur's alleged perpetrators for criminal prosecution in 2011. On the other hand, the intervention in Liberia by the Economic Community of West African States (ECOWAS) was authorised by the UN.
Nonetheless, the competence of the UN Security Council is based on customary international law and a wide interpretation of the concept of 'threats to peace' enshrined in Chapter VII of the UN Charter. The scope of the term 'threats to peace' has been widened to include abuses of human rights and the commission of grave breaches of humanitarian law during armed conflicts.
The measures of enforcement against such violations are various and have included sanctions (Darfur 2005, Ivory Coast 2004, Democratic Republic of Congo 2003 and Libya 2011); the establishment of commissions of inquiry to investigate violations of IHL (Rwanda 1993 -1995, Somalia 1989-1992 and Darfur 2004); facilitation of the provision of humanitarian relief by member states (Somalia 1993); military intervention (Somalia 1992 and Rwanda 1994); and legitimisation of criminal trials (Rwanda 1994 and Darfur 2011). In rare instances the UN has also used civil liability as an enforcement mechanism for violations of IHL[16].
iv) Judicial Mechanisms: Criminal vs. Civil Liability
A number of judicial mechanisms for ensuring compliance with IHL exist.
Fear of criminal and disciplinary measures can deter individual members of armed forces from violating these laws. In addition to the deterrent effect of prosecutions, civil liabilities offer a practical remedy to victims who may have been affected by the breaches of IHL in various ways. For instance, they may require long-term medical attention, may no longer be able to work, and could have lost their property.
a) Criminal Liability
Individual members of the armed forces who violate IHL can be prosecuted according to criminal and disciplinary measures. Criminal prosecution is always the consequence of a grave breach while other abuses can be penalised using disciplinary provisions[17]. States are under an international legal obligation to investigate any allegation of commission or of ordering a grave breach regardless of the nationality of the perpetrator and location where the breach was committed. In terms of punishment, both the commander and the subordinate are equally responsible.
Recently, the state responsibility to prosecute in Africa has been discharged though the creation of international tribunals (Rwanda 1994); mixed criminal tribunals (Sierra Leone 2002); and the permanent tribunal for prosecuting individuals for genocide, war crimes and crimes against humanity, the International Criminal Court (ICC).
To date the ICC has focused exclusively on Africa, which has led to criticisms that it promotes a neo-imperialist agenda. Indeed, cases currently before the court concern crimes alleged to have been committed in six African countries namely, the Democratic Republic of Congo, the Central African Republic, Libya, Kenya, Sudan (Darfur) and Uganda (the Lord's Resistance Army).
b) Civil Liability
Another means of guaranteeing the application of IHL is civil liability. International law gives the state an option to claim compensation for breaches of IHL. This mechanism, however, is rarely used and the only recent African example is the Ethiopia-Eritrea Claims Commission of 2000, which was created for the purpose of compensating victims of breaches of IHL. Nonetheless, it should be noted that breaches of all IHL norms give rise to a duty to make reparation.
c) Other Measures
In addition to the mechanisms discussed above, negotiation (including mediation, good offices, etc.), media campaigns and public relations, fact-finding, shaming and reprisals are other ways in which compliance with IHL can be guaranteed. As the other measures are self-explanatory, the two paragraphs below will briefly discuss reprisals and the role of the International Humanitarian Fact-finding Commission (IHFFC).
Reprisals refer to a violation of IHL undertaken to cause an adversary, who has breached the law, not to do so. For humanitarian reasons, the Geneva Conventions limits the opportunity to engage in reprisals[18]. In particular, reprisals against protected persons, the natural environment and cultural property are prohibited[19]. With increased regulation of the conduct of war, however, it could be said that nowadays reprisals seem to have disappeared from the script of IHL.
Established in 1991, pursuant to Article 90 of Protocol 1, the IHFFC is comprised of fifteen independent members. Its role is to investigate incidents of grave and serious breaches of IHL within states that have recognised its competence. However, its good offices have never been used in the 21 years of its existence. It is also noteworthy that very few African States have recognised the competence of the IHFCC[20].
IV - CONCLUSION
African states and individuals are obliged to respect, and ensure that IHL is respected, within and outside their territories. Despite this obligation, however, parties to almost all African conflicts have frequently committed violations of these rules. Nonetheless, there is documentary evidence which illustrates that IHL provisions, and the various mechanisms for monitoring and the enforcement of these rules, have prevented or alleviated suffering in many cases.
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QUESTIONS TO CONSIDER:
1. What is international humanitarian law? How does it differ from other forms of international law?
2. Why does discourse on the origins of IHL privilege European cultures and philosophy? How accurate is this representation?
3. What are the sources of international humanitarian law?
4. How successful is the application of IHL in Africa? What are the reasons for this?
5. Why is a distinction drawn between international and internal conflict? How accurate is this distinction?
[1]ICRC Advisory Service on International Humanitarian Law
[2] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (I Geneva Convention); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (II Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (III Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I); and Protocol Additional to The Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (Additional Protocol II).
[3] International Committee of the Red Cross, 'Basic rules of the Geneva Conventions and their Additional Protocols, ICRC publication 1988 ref. 0365 < http://www.icrc.org/eng/assets/files/other/icrc_002_0365.pdf>
[4] http://www.icrc.org/eng/resources/documents/news-release/2012/south-sudan-news-2012-07-09.htm
[5]Common Art. 2 of the 1949 Geneva Conventions as read with ¶ 70 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995 and ICRC Opinion paper, March 2008
[6] Art. 1(2).Additional Protocol II.
[7] The four Geneva Conventions of 1949 and Protocol 1 of 1977 (which all apply to international armed conflicts) each have a definition of what constitutes grave breaches. See GC 1 Art. 50, GC 2 Art 51, GC 3 Art 130, GC 4 Art. 147, AP 1 Article 11 and AP 1 Article 85
[8] GCs Art. 49, 50, 129, 146.
[9] GCs: Art. 47, 48, 127, 14, see also AP I: Art. 83, 87(2); AP II: Art. 19. See Also ICRC, "Practice Relating to Rule 143. Dissemination of International Humanitarian Law among the Civilian Population"
[10] See 1CRC ( 2012), "IHL in Africa: from rules to action"
[11] GCs I-III, Art. 8; GC IV, Art. 9; P I, Art. 5
[12] Art. 5, 4 ¶AP 1.
[13] For the activities of the ICRC see: < http://www.icrc.org/eng/what-we-do/index.jsp> See also Art. 6 of the Statutes of the International Red Cross and Red Crescent Movement.
[14] For ICRC operations in Africa see:< http://www.icrc.org/eng/where-we-work/africa/index.jsp>
[15] See ICRC 2009 Annual Report for a synopsis of some of these activities <
[16] See S.C. Res. 687, U.N. Doc S/Res/687 (Apr. 8, 1991) on the establishment of the United Nations Compensation Commission (UNCC) to adjudicate claims stemming from the Iraq invasion of Kuwait.
[17] For a definition of grave breaches see GCs I & II Art. 50 and 51
[18] See ¶527 Prosecutor v. Zoran Kupreškić, Judgment, et seq. (Jan. 14, 2000).
[19] AP I, Art. 51(6), AP I, Article 52(1), AP 1 Art. 53, AP 1 (Art 55(2).
[20] For a list of state parties see;
Khanyisela Moyo is a lecturer at the University of Ulster, Transitional Justice Institute and School of Law. She holds a PhD in Transitional Justice from Ulster University, Northern Ireland, an LLM in Public International law from Nottingham, an MA in Human Rights law from Oslo University, Norway, and an LLB (Hons) from the University of Zimbabwe.
