Putin v Ukraine, and International Humanitarian Law. The rules of war explained.
Definition and genesis of international humanitarian law
Warfare has always been governed by certain principles and conventions.
International humanitarian law began to be universally codified in the nineteenth century and states have since agreed on a set of practical norms based on the experience of contemporary combat. These standards achieve a delicate balance between humanitarian considerations and a state’s military obligations and international humanitarian law has evolved into a worldwide body of law in the modern era.
International humanitarian law is a system of regulations aimed at mitigating the impacts of armed conflict for humanitarian purposes. It safeguards those who are not or have ceased to be involved in hostilities and limits the means and techniques of combat.
International humanitarian law is a subset of international law, which is the collection of norms that regulate states’ relations. Armed conflicts are governed by international humanitarian law. It makes no provision for determining whether a state may actually employ force; this is controlled by a significant but independent body of international law codified in the United Nations Charter.
International humanitarian law is frequently referred to as war law or armed conflict law.
Where can one find international humanitarian law?
The four 1949 Geneva Conventions constitute a significant portion of international humanitarian law. Almost every state on earth has committed to abide by them. The Conventions have been expanded and extended by two further agreements: the 1977 Additional Protocols on the protection of victims of armed conflicts.
Other accords that restrict the use of specific weapons and military tactics and provide protection for specific groups of persons and commodities include:
- The 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict, amended by two subsequent protocols;
- The 1972 Convention on Biological Weapons;
- The Convention on Conventional Weapons of 1980 and its five Protocols;
- The Chemical Weapons Convention of 1993;
- The 1997 Ottawa Anti-Personnel Mines Convention;
- The 2000 Optional Protocol to the Convention on the Rights of the Child on children’s participation in armed conflict.
When does humanitarian international law apply?
International humanitarian law only applies to military combat; it excludes internal tensions or disturbances, such as individual acts of violence. The legislation takes effect only after a dispute has commenced, and then applies equally to all parties, regardless of who initiated the disagreement.
International humanitarian law makes a distinction between armed conflict on an international and non-international scale. International armed confrontations include at least two states and are governed by several rules, notably those contained in the four Geneva Conventions and Additional Protocol I.
Non-international armed conflicts are those inside the borders of a single state and include either regular military forces battling groups of armed dissidents or armed groups battling one another. Internal armed conflicts are subject to a more limited set of restrictions, as outlined in Article 3 of the four Geneva Conventions, as well as in Additional Protocol II.
It is critical to distinguish international humanitarian law from human rights law. While they share some standards, these two systems of law arose independently and are codified in distinct treaties. Unlike international humanitarian law, human rights legislation applies in peacetime, and many of its rules may be suspended during an armed war.
What is covered under international humanitarian law?
International humanitarian law is divided into two branches – the defence of those who are not, or are no longer, engaged in combat and secondly, limitations on the means of combat, namely, weaponry, and techniques of battle, such as military tactics.
International humanitarian law safeguards persons who are not combatants, such as civilians and medical and religious military personnel and protects individuals who have stopped to participate, such as wounded, shipwrecked and ill combatants, as well as detainees.
These people are entitled to be treated with dignity and to have their bodily and mental integrity protected. They have legal protection and must be safeguarded and treated decently under all circumstances. Medical staff, supplies, hospitals, and ambulances must also be protected.
Additionally, there are specific laws controlling the circumstances of imprisonment for prisoners of war and the treatment of civilians when under the jurisdiction of an adversary state. This includes food, housing, and medical treatment, as well as the opportunity to communicate with their family.
The legislation specifies a number of easily identifiable symbols that may be used to designate protected individuals, locations, and items. The red cross, the red crescent, and the marks indicating cultural property and civil defence facilities are the primary emblems.
What limitations apply to weapons and tactics?
International humanitarian law forbids the use of any weapons or techniques of combat that:
- Make no distinction between those engaged in combat and those who are not, such as civilians, with the intent of protecting the civilian population, individual civilians, and civilian property;
- Inflict undue damage or suffering;
- Have a detrimental effect on the environment in the short or long run.
Consequently, humanitarian law prohibits the use of a variety of weapons, including explosive bullets, chemical and biological weapons, blinding laser weapons, and anti-personnel mines.
Is international humanitarian law truly being followed?
Regrettably, there are numerous instances of international humanitarian law violations with civilians increasingly becoming the victims of war.
However, there are significant instances when international humanitarian law has aided in the protection of civilians, prisoners, the ill and wounded, as well as in limiting the use of barbarous weaponry.
Given that this legislation is applicable during periods of high violence, enforcing the law will always be a challenging task.
What should be done to carry out the law's provisions?
There must be safeguards in place to ensure compliance with international humanitarian law. States is responsible to educate their armed forces and the broader public about these laws and must either prevent infractions or penalise those who commit them.
They must implement legislation specifically targeting the most egregious violations of the Geneva Conventions and Additional Protocols, which are considered war crimes. Additionally, the states must enact legislation safeguarding the red cross and red crescent insignia.
International measures include courts that have been established to punish offences done during recent conflicts and the 1998 Rome Statute established an international criminal court charged with the obligation of prosecuting, inter alia, war crimes.
We may all make significant contributions to conformity with international humanitarian law, whether individually or through governments and diverse organisations.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
Disclaimer
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
HFG Attorneys in Paarl, Western Cape, specialises in four main areas, including family law, general litigation, criminal defence and firearm law.
