International Humanitarian Law
The history of International Humanitarian Law (hereinafter referred to as “IHL”), dates back to the year 1859, specifically the 24th of June with the headline, “The Battle of Solferino”. On that day to be remembered forever, the bloody struggle for Italian unification came to an end when the armies of France and Piedmont-Sardinia defeated Austrian forces at Solferino in northern Italy. The evolution of contemporary humanitarianism was fundamentally influenced by this historical moment.
One would wonder how the advent of humanitarianism could result from a conflict that left over 6,000 people dead and 40,000 injured. We can only respond to this issue by examining the specifics of what transpired during that conflict.
The Battle of Solferino
The Battle of Solferino was a struggle for Italian Unification. Napoleon III, the Emperor of France, led an alliance with the Sardinians against the Austrian forces in this battle. According to historians, at least 230,000 soldiers from the Franco-Sardinian and Austrian armies fought on the battlefield along a 15-kilometre frontline. It was a bloody battle that went on for more than 12 hours.
Following the battle, the French and Sardinian soldiers’ medical services were overwhelmed. There were reports of wounded and dying soldiers on both sides. There was a shortage of food and water supply, and transportation for the wounded was practically non-existent. There was no protection or treatment for the civilians and all who had suffered injuries from this battle. This horrific state led to the question of how human suffering could be limited and prevented in times of armed conflict.
This question was answered by Henry Dunant, a Swiss Businessman, who had witnessed the aftermath of the battle. He realized that there was a need for international rules which would limit the effects of war on people and property, and protect certain particularly vulnerable groups of persons. He then pushed for the creation of a neutral and impartial organization to protect and assist the wounded. This Organization is what we have come to know as the International Committee of the Red Cross (hereinafter referred to as the “ICRC”).
The ICRC quickly began its work in 1864 with a diplomatic conference, organized by the Swiss government, at the prompting of the five founding members of the ICRC. It was at this conference that the 16 states in attendance adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. This was the birth of modern IHL.
Having succinctly discussed the historical development of IHL, we would now delve into the primary focus of this article. At the end of this article, the reader would understand the concept of IHL, the principles of IHL and why IHL was created.
What is IHL?
To begin with, it is important to note that IHL is a branch of International Law, the body of regulations that governs interactions between States. International law is contained in agreements between States; treaties or conventions; customary rules, which consist of State practise considered by them as legally binding, and general principles.
Moving further, IHL is a set of rules which seek, for 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. IHL is also known as the law of war or the law of armed conflict.
Legal Framework of IHL
The birth of contemporary IHL initially developed through the Law of Geneva; which protects the victims of armed conflicts such as military personnel and civilians who are not or no longer participating in hostilities, and the Law of Hague which regulates the conduct of hostilities and limits means and methods of warfare.
The inadequacies of these legal instruments were later revealed during World War II when it was discovered that nearly every letter of the Hague agreement had been broken. In this war, Civilians and Military Personnel were killed in equal numbers. Thereafter, the international community adopted a new instrument and revised existing conventions in response to the high rates of civilian casualties and the catastrophic effects the war had on people. This led to the adoption of the Geneva Conventions of 1949 still in force today.
The ICRC also pushed for additional protocols to the Geneva Convention, and this led to the adoption of additional protocols 1-4, two of which were adopted in 1977.
When Does IHL Apply?
There are specific situations and scenarios in which IHL would apply. IHL applies only to situations of armed conflict and to all actors in an armed conflict. IHL does not apply to situations of violence not reaching the threshold of armed conflict; cases of this type are governed by the provisions of human rights law and domestic regulation.
These situations have been classified into two. Namely:
- International Armed Conflict; and
- Non-International Armed Conflict
International armed conflict occurs every time there is a resort to armed force between two or more countries. While, Non- international armed conflict exists when there is protracted armed violence between government forces and organised armed groups or between such groups within a country.
Principles of IHL
IHL has certain fundamental principles guiding its application during Armed Conflict. The Principles of the IHL include but are not limited to:
- Distinction: According to this principle, parties to an armed conflict must always distinguish between civilians and combatants, as well as between civilian objects and military objectives, and only direct their actions against these targets. IHL justifies this distinction by stating that during armed conflicts, only combatants and military objectives may be targeted.
- Proportionality: the principle of proportionality seeks to minimise the harm caused by military operations by mandating that the results of the means and techniques of war employed must not be disproportionate to the military advantage sought.
- Precaution: This principle simply emphasizes the need to take care in military operations to limit the effect of armed conflict on civilians and civilian objects. It emphasizes that all feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.
Why Do We Need IHL?
IHL is one of the most powerful tools the international community has at its disposal to ensure the safety and dignity of people in times of war. The main objectives of IHL include:
- To limit the suffering caused by warfare and to alleviate its effects.
- To protect the sick, wounded, shipwrecked, prisoners of war and people who are deprived of their liberty.
- To ensure special protections for vulnerable people, including foreign nationals in the power of a party to the conflict, civilian internees, and women and children.
- To preserve a measure of humanity amidst conflict, with the guiding principle that even in war there are limits.
Rules Of IHL
IHL rules are the result of a delicate balance between the exigencies of warfare (” military necessity ” ) on the one hand and the laws of humanity on the other. These rules are as follows:
- Persons who are hors de combat (outside of combat), and those who are not taking part in hostilities or situations of armed conflict (e.g., neutral nationals), shall be protected in all circumstances.
- The wounded and the sick shall be cared for and protected by the party which has them in its power.
- The emblem of the “Red Cross”, or of the “Red Crescent,” shall be required to be respected as a sign of protection.
- Captured persons must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
- No one shall be subjected to torture or cruel inhuman or degrading treatment or punishment.
- Parties to a conflict do not have an unlimited choice of methods and means of warfare.
- Parties to a conflict shall at all times distinguish between combatants and non-combatants.
- Attacks shall be directed solely against legitimate military targets .
Conclusively, IHL recognizes the fact that outbreaks of wars cannot always be prevented. It is also expected that harm, destruction, and death can be lawful during armed conflict. However, IHL has such principles in place in order to preserve humanity and mitigate destruction which occurs amid warfare. The principles and rules of IHL are imperative to ensure that lives are not wasted.
- 1949 Geneva Convention (I) For The Amelioration Of The Condition Of The Wounded And Sick In Armed Forces In The Field | Centre For International Law’ (Web.archive.org) <https://web.archive.org/web/20140221161712/http://cil.nus.edu.sg/1949/1949-geneva-convention-i-for-the-amelioration-of-the-condition-of-the-wounded-and-sick-in-armed-forces-in-the-field/> accessed 9 September 2021
- Help H, and Law I, ‘What Is International Humanitarian Law? – Canadian Red Cross’ (Red Cross Canada, 2022) <https://www.redcross.ca/how-we-help/international-humanitarian-law/what-is-international-humanitarian-law> accessed 9 September 2021
- ‘International Committee Of The Red Cross’ (International Committee of the Red Cross, 2022) <http://www.icrc.org/web/eng/siteeng0.nsf/html/p0365> accessed 9 September 2021
- ‘Solferino And The International Committee Of The Red Cross’ (ICRC.org, 2022) <https://www.icrc.org/en/doc/resources/documents/feature/2010/solferino-feature-240609.htm&usg=AOvVaw0y3ddS-D0kKxG-mXJtIbWs> accessed 16 September 2021
- ‘What Is IHL’ (Icrc.org) <https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf&ved=2ahUKEwj6v6-> accessed 10 September 2021
- ‘International Humanitarian Law’ (Wikipedia.org) <html49%en.wikipedia.org/wiki/International_humanitarian_law40%> accessed 9 September 2021
- ‘Basics of International Humanitarian Law’ (reliefweb.int) <reliefweb.int/report/world/basics-international-hu…an-law-december-201717%brainly.in/question/1413851510%> accessed 10 September 2021
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Deborah Ali is a third year law student at the University of Jos, Nigeria. She is passionate about International law, global development, Intellectual Property, Technology and AI. She loves reading, writing and learning new languages: Korean, French and Spanish being her top choices.