What is International Humanitarian Law?

Introduction

International humanitarian law (IHL), often referred to as the laws of war, is a framework of rules which come from various treaties, protocols, international agreements and customary international law  which seeks to regulate the means and methods of warfare in order to minimize suffering. This framework seeks to uphold humanitarian principles, human dignity and recognize the sanctity of life even in the darkest periods of warfare.

Guiding Principles

In 1864 the first and Second Geneva Convention provided protection for wounded and sick soldiers on the battlefield and provided protection for the medical personnel who care for them by stating that they fall into the category of non-combatants in both land and sea. The Third Geneva Convention provides rules for Prisoners of War ensuring that they are properly cared for, are free from coercion, abuse and torture and have their dignity maintained. The Fourth Geneva Convention protects civilians especially in occupied territories.  

The Principle of Distinction Between Combatants and Non-Combatants

This distinction between combatant and non-combatant is fundamental to IHL with the Additional Protocols of 1977 and 2005 expanding to cover non-international armed conflicts and non-state actors with the intention to expand protections to civilians and regulate means and methods of warfare in those situations. Even Combatants are entitled to honorable and dignified care when taken as Prisoners of War. These principles underscore the necessity of limiting the brutality of warfare and safeguarding human rights, regardless of the circumstances.

In general, a combatant is a person, wearing a uniform or symbol designating them as part of an armed force who is capable of direct participation in hostilities. Injured combatants, those who are shipwrecked, surrendered forces and those parachuting down are not considered active combatants. The Geneva Convention states that enemy wounded soldiers should receive medical treatment and not be summarily executed or left to die from medical neglect. Any injured soldier from any side should be given medical attention and the dead are to be buried in a way that respects their tradition, even if the fighting is forced to stop.

Civilians are those who do not take direct participation in hostilities. IHL prohibits the deliberate or indiscriminate killing of civilians, wanton destruction of civilian areas, destruction of civilian property, the use of civilians in medical experimentation and forced labor of civilians. Civilian property is also protected and looting and pillaging is prohibited, civilians should be compensated if armed forces use personal property. The goal is to shield civilians from the conflict when possible. The Geneva Conventions force nations to make condolence payments should civilians be killed during war activities.

Journalists reporting on the war are considered non-combatants and should be protected as civilians from being military targets. Medical personnel and clergy who are part of the armed forces receive protection and are considered non-combatants. Hostage taking, the use of human shields, killing of prisoners, starvation of prisoners and starvation as a weapon wielded against the civilian population are all prohibited actions.

The Principles of Necessity and Proportionality

The principles of necessity and proportionality of an armed attack can be dated back to ancient Roman times. These principles should apply to every attack. The Geneva Convention places a protection over civilian infrastructure such as schools, hospitals, museums, religious and cultural sites and should not be a military target unless it is absolutely necessary to do so to achieve a military objective and the site has been militarily fortified and repurposed to be used for military purposes by the enemy. Necessary civilian infrastructure such as power and water plants should not be targeted.

The principles of proportionality and necessity confer an obligation on combatants to first identify legitimate military targets then to engage in a proportionality exercise in deciding whether to attach which should involve assessing the military advantage gained by the attack and the potential damage to protected persons and infrastructure. Though in theory this may be seem like a straight forward exercise, these principles are far from settled with legal academics holding a wide range of opinions regarding the principles of distinction, necessity and proportionality especially in regard to who should make the assessment, how and when the assessments should be made and what is considered an acceptable amount of “collateral damage”. Those academics who favor military achievement often have a bigger tolerance for “collateral damage” and a wider definition of combatant while those who prioritize civilian protection will balance the scales in favor of IHL operating to protect.

Banned Weapons

Another part of IHL can be found in treaties which seek to limit the use of certain weapons which may cause indiscriminate damage or be considered to cause deliberate pain and suffering. Biological agents such as disease are illegal as their effect is indiscriminate and can quickly spread beyond the borders of the warzone. Chemical weapons, both lethal and non-lethal gasses, are illegal to use in war. Weapons such as lasers which are designed to blind or paralyze are prohibited. Exploding and expanding bullets cause exponential suffering and are prohibited and the use of non-detectable fragments are prohibited as these are designed to increase suffering. The use of flamethrowers, napalm and incendiary weapons are restricted and cannot be used in civilian areas. Flamethrowers should not be used to eliminate enemy combatants unless this is the only way to eliminate the enemy. Cluster bombs (a bomb which releases little bombs) are prohibited. The use of landmines is very restricted.

Implementation of IHL

Despite the comprehensive framework laid out by IHL, challenges persist in its enforcement and application. Global political dynamics often impede accountability for violations, leading to impunity for perpetrators. Instances of widespread civilian casualties and the use of prohibited weapons underscore the urgent need for stronger mechanisms to uphold IHL. The role of international organizations, such as the International Committee of the Red Cross (ICRC), is vital in promoting respect for these laws, conducting training, and advocating for compliance among warring parties.