The Concept and Challenges of International Humanitarian Law
Author: Gagana S, Ramaiah College of Law
In this article I intend to cover the crux of International humanitarian Law. I will be focusing on the major reasons that led to the formation of law and how through the course of time the civilians have been affected. I will be giving a brief insight into the various conventions and treaties. Also through the course of the article I will be discussing on the effectiveness of this law as well as the challenges that it is put through in the current scenario. My conclusion would state the effective measures to be adopted to combat the challenges of the same
“International humanitarian law is a set of rules which seek, humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare” quoted by ICRC. In a nutshell the law aims to protect civilians, medical workers, prisoners of war or basically the non- combatants. It also seeks to have a control over the weapons that are being used, so much so that it does not end up having a profound impact on the community and the culture of the place.
Concept and Challenges of International Humanitarian Law
Its aim is to humanize war in an effort to minimize the suffering and the long-term negative consequences of war. As the modern globalization began, the dynamics of the world began to change. With the increase in the concept of world as a global village gained prominence the rise in a variety of conflicts also surged. One of which was war, both within the country and externally. The harsh reality of the aftermath of war resulted in being a serious concern. Civilians have been the primary victims of violations committed by both state parties and the armed groups. There has been deliberate attacks on them, forced displacements of the population and destruction of property vital to the general public, are just some of the acts that have been perpetrated on a regular basis.
The codification of the laws began in the 19th century and since then almost every state has been a signatory. The law kept in mind the military requirements as well as the humanitarian aspect. The international humanitarian law first evolved on 22nd August, 1864. Henry Dunant and Gustave Moynier were the pioneers in formulating the law where in initially 13 states met in Geneva and adopted the ten articles of the first convention for the Amelioration of the condition of wounded Armies in the Field. A major part of the law is contained in the four Geneva Conventions of 1949. There were several agreements and conventions held in accordance with the variation in the geo political scenario of the world.
One such convention was the 1972 Biological weapons convention, which limited the type of war weapons that could be used. The International committee of the Red Cross is the only institution that explicitly controls the International humanitarian law. It is an independent and neutral organization whose exclusive mission is to protect the lives and dignity of victims of war. Jus in bello-law of war, which regulates the condition for war and jus ad bellum- set of criteria before engaging in a war, these two laws together comprise the international humanitarian law.
Now let us look into some of the examples where the law was of paramount importance. The infamous incident of Wing Commander Abhinandan Varthaman being captured in Pakistan and released later is a classic example of the effectiveness of the law. As both the nuclear armed countries were a signatory to it. Though Pakistan claims it to be a “peaceful gesture” they were legally bound to release him as per the Geneva Conventions adopted in 1949, during the backdrop of World War Two and the International Humanitarian Law.
The fact that the law is applicable only to international armed conflicts makes it two-edged. It does not apply to conflicts that arise internally, where the human rights law plays a major role. One of the major drawback of this law is the fact that it is applicable only at the extreme severity of war, due to which its implementation is onerous. As much as it is appreciative that IHL has stepped out of the expert circle and is now in the public domain, the scope for opportunistic misinterpretation has also risen. There has been many instances where the States have denied the applicability of IHL even though the ground situation clearly indicates otherwise.
In other situations the States have broadened the applicability of IHL for their professional motive. States engaged in non-international armed conflicts have, with increasing frequency have labelled any act committed by domestic insurgents as “terrorism” even though such an act under IHL might not have been unlawful. Occurrences like these dilute the effectiveness of the law which is a serious concern. Improving compliance with all belligerents by IHL on the battlefield remains a great challenge.
Merely making the parties of the armed conflict aware of the law or of their specific obligations is not enough to ensure compliance. The law should be presented and discussed strategically as a part of a deliberate plan to engage the parties. There is a great diversity of the armed conflicts that persists as a result, there is no uniform approach to the problem of lack of respect of IHL.
Any effort to increase the respect for IHL will be effective if it takes into account the unique characteristics of a specific situation. It is also of prime importance for the preventive mechanisms to be consolidated for the law to fulfil its protective role. And states in this regard have a crucial role to play. It is time we ensure the compliance of the law to a greater extent. Loss of life, livelihood, displacement of population, loss of heritage has an everlasting impact on the communities for centuries to go.