What is the International Humanitarian Law

International humanitarian law comprises of Geneva Conventions and Hague

Conventions. International Humanitarian Law or I.H.L is a linkage between Humanity
and Barbarism. The foundation of I.H.L was laid by two persons, Henry Dunant and
Francis Lieber (around the mid 19th century), both unaware of the efforts of the other,
making essential contributions to International Humanitarian law. Both Humanitarian
Law and Human Rights Law look into the aspect of protection and provision of human
dignity and guarantees of physical and mental well being. It is important to
differentiate between international humanitarian law and human rights law. While
some of their rules are related, these two bodies of law have developed disjointedly and
are contained in different treaties. In particular, human rights law – unlike international
humanitarian law –applies in peacetime, and many of its provisions may be suspended
during an armed conflict. Also human rights are primarily concerned with how a
government treats its own citizens whereas International Humanitarian Law looks into
the War time situation and protection of people.

Tracing the events and Evolution of International Humanitarian Law

1863 Lieber Code

1864 Geneva Convention ( Henry Dunant and the Geneva law)

1868 ST. Petersburg Declaration ( Prohibition of use of minor projectiles)

1899 & 1907 Hague Conventions

1925 Geneva Gas Protocol ( Prohibiting use of Chemical and Bacteriological Weapons)

1929 Geneva Conventions ( Prisoner of War)

1949 GENEVA CONVENTIONS 1949

GCI: Protection and care of Wounded and Sick at War times

GCII: Amelioration of Wounded, Sick and Shipwrecked

GCIII: Treatment of Prisoners of War

GCIV: Protection of Civilian Persons

1977 ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS

API: International Armed Conflict and protection of civilians

APII: Non-International Armed Conflict

Treaties prohibiting / Limiting the use of Weapons

1998 International Criminal Court (Rome) Statute

2005 ADDITIONAL PROTOCOLS – Re addition of the Emblem

International Humanitarian Law in relation to the State

International law is contained in agreements between States – treaties or conventions –,

in customary rules, which consist of State practice considered by them as legally
binding, and in general principles. International humanitarian law applies to armed
conflicts. It does not regulate whether a State may actually use force; this is governed by
an important, but distinct, part of international law set out in the United Nations
Charter. The mutual respect of framework as how to unleash violence to adversary and
to what limit are set by the international humanitarian law.

Lieber and Dunant essentially wanted that in situations of war there should be a
principle distinction between the people involved and affected by the war, as in the
Members of the fighting force, the combatants and the civilians. There should be a
distinction between ‘Men’ and ‘Soldiers’ as war was a relationship between States and
not man to man. The foundation of IHL is based on the idea that certain categories of
individuals must be spared the effects of violence as far as possible regardless of the
side to which they happen to belong and regardless of the justification given for armed
conflict in the first place The fighting force is just an instrument at the hands of the state.
Civilians have remained the primary victims of violations of IHL committed by both
State parties and non-State armed groups.

For this exists The International Committee of the Red Cross (ICRC) –Switzerland,
which is an impartial, neutral and independent organization whose exclusively
humanitarian mission is to protect the lives and dignity of victims of war and internal
violence and to provide them with assistance.

It directs and coordinates the international relief activities conducted by the Movement
in situations of conflict. It also endeavors to prevent suffering by promoting and
strengthening humanitarian law and universal humanitarian principles. Politicization
of such an organization defeats the purpose in the first place itself. IHL's primary
beneficiaries are civilians and persons hors de combat. (People out of the action of war/
people outside the fight). They have been used as human shields. IHL principles and
standards, the alterations and tailoring of the law- has been the focus of expert debates
and also of intense and wide-ranging governmental, academic and media scrutiny.
The non-application or selective application of IHL, or the misinterpretation of its rules
for domestic or other political purposes, can and inevitably does, have a direct effect on
the lives and livelihoods of those who are not or are no longer waging war.

Fundamentals or Structure on which international humanitarian law is based

(A result of the Geneva and Hague Conventions)

“ In cases not covered by this protocol ( Hague Convention IV – 1977) or by any other
International agreements, civilians and combatants remain under the protection and
authority of the principles of international law derived from established custom, from
the principles of humanity and form the dictates of public conscience" - Martens Clause

This clause testifies to the completeness of the humanitarian protection

International Humanitarian Law has to make certain allowance in regard to war and
legitimate military goals, its Military Necessity. Just because it is an International law
need not mean that it can set up absolute prohibitions, it can limit the unnecessary harm
and seeks humanitarian dimension in a conflict and this – is the target that it wishes to
achieve. In current armed conflicts, the problem is not a lack of rules, but a lack of
respect for them.

The International Humanitarian Law has various terminologies and definitions relating
to war and as to how to go about it. A few of them being –

Jus Ad Bello: are the set of international rules that look into matters of armed conflict
and the parties related to it. These rules are applicable to the between the parties related
to the armed conflict.

Jus Ad Bellum: is the set of international rules governing the resort to armed conflict.

Military Necessity: it is the use of armed force in order to attain legitimate military
objectives and complete submission of the enemy.

Proportionality: The ratio of the conflicting parties must be proportionally legitimate.

There cannot be mass exploitation by a superior state to that of a militarily weak one.
This keeps the war from its barbaric nature, keeping humanity in mind. There should
be tempering down of limitless use of force.

Basic standards and guarantees of International Humanitarian Law

Persons or hors de combat are entitled to respect for their lives and moral and physical
integrity.
One should distinguish, at all times, between civilian population and combatants. It is
prohibited to launch attack against the civilian population.

It is forbidden to kill or injure an enemy who surrenders or hors de combat.

The wounded and sick shall be protected by all means and cared for.

Captured combatants or civilians are entitled to respect for their lives, dignity and
personal rights. The law safeguards human rights from abuse by state power.

The victims of violations shall be entitled to benefit from judicial guarantees

They will not be subject to physical or mental torture, mutilation and corporal
punishment, cruel or degrading treatment.

Either of the conflicting parties will not have unlimited or unrestricted means of
warfare. War, that means, shall be waged in a ‘chivalrous’ manner.

The right of the parties to the conflict to adopt means of injuring the enemy is not
unlimited

The Challenges faced while implementing International Humanitarian Law

Questions are often posed to principles of I.H.L. There is a demand for justification on
the fundamentals: a challenge to the International Humanitarian Law. Hence, there are
countless examples of violation of international humanitarian law and challenges in its
implementation. The situations and handicaps being the following

On defining Humanity:

The law is just one among numerous tools used to standardize human behavior and no
branch of law, whether international or domestic, can on its own, be expected to
completely regulate a phenomenon as multifaceted as violence. The criticism usually
given here is that what one can define as humanity is not fixed. Humanity in itself is a
contested concept. No matter the amount of effort that I.H.L puts in to define it- can do
so. Since there is no standardized definition- each manipulates it to their own use and
hence I.H.L. loses the respect it so often deserves for its efforts.(whether rewarding or
futile).Measures need to be taken to ensure respect for international humanitarian law
so that there is a standardization of the law and acceptance of it. It must command and
not hence, demand for the actions that it needs to take at times of armed conflict.
International Humanitarian Law needs to be accepted as the universal body of law.
And its universal application needs to be accepted and not questioned. This is one
factor that I.HL faces while entering a conflict – that of its legitimacy.
I.H.L and the State:

In the first place itself, there has to be compliance of the state for these rules and
regulations. The lack of it creates a problem in implementing the law. While IHL aims
to circumscribe certain behavior in armed conflict, there will always be States, non State
armed groups and individuals who will not be deterred from violating the rules,
regardless of the penalty. If relied on as the sole tool for eliminating or reducing
violence, it must be understood to have limits involved. States have an obligation to
teach its rules to their armed forces and the general public. They must prevent
violations or punish them if these nevertheless occur, which rarely happens. In
particular, they must enact laws to punish the most serious violations of the Geneva
Conventions and Additional Protocols, which are regarded as war crimes. Co-operation
amongst the states is another hurdle in the implementation of the I.H.L. Time and again
there are acts of violence which are transnational in character. Implementation of I.H.L
then becomes a more complex task because with the involvement of more actors and
institutions, there are more clauses, if’s and but’s which need to be taken care of. As for
permit of IHL in the conflict one needs to strategically plan and discuss what they think
would bait the two conflicting parties with- which would eventually allow IHL to
perform its functions there.

The basic principles and rules governing the conduct of hostilities and the treatment of
persons in enemy hands continue to reflect a reasonable and pragmatic balance between
the demands of military necessity and those of humanity. The main cause of suffering
during armed conflicts and of violations of IHL remains the failure to implement
existing norms – whether owing to an absence of political will or to another reason –
rather than a lack of rules or their inadequacy. However, there are important cases
where international humanitarian law has made a difference in protecting civilians,
prisoners, the sick and the wounded, and in restricting the use of barbaric weapons.
Given that this body of law applies during times of extreme violence, implementing the
law will always be a matter of great difficulty.

Funds:

Another problem in the implementation of I.H.L is as to how it is funded and who

funds. Also the political influence of that funding.

Conflicting interests:

Lastly there is an internal problem as to how to enter about an armed conflict and the
decision taking of what is to be done and how to go about it. Political, economic,
societal, cultural and other factors that influence human conduct just as decisively must
also be taken into account when contemplating comprehensive solutions to any form of
violence.
 CONCLUSION

The time since the law has been implemented; there have been a wide range of conflicts.
There has been successful as well as unsuccessful intervention by the Law. For this
matter, whether as individuals or through governments and various organizations, one
needs to comply with international humanitarian law. The overall picture that emerges
is one of well-established and mature body of law whose basic tenets, if applied in good
faith and with the requisite political will, continue to serve their initial purpose - which
is to regulate the conduct of war and thereby alleviate the suffering caused by war.

Another point that needs to be made is the process or working of the IHL. Be it via the
International committee of the Red Cross or The United Nations, IHL has to be solely
decisive and taking actions for whatever action taking place and not leave the decision
in hands of superior influential nations or nations that at that particular event in time
consider it their right and their duty and then personalize the efforts. Lastly, all human
races are equal in demand of their basic human needs. IHL in its implementation has to
learn to keep that in mind barring the political influence of its essential contributors.
This seems to be a real handicap with case of IHL. The day there is equality in treatment
with people of all nations; humanity will surely be equalized and easier to apply. That
said, striving for effective compliance remains as urgent as ever. All one can do is just
hope for the best.