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A GLANCE AT THE EMERGENCE OF INTERNATIONAL HUMANITARIAN LAW
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A GLANCE AT THE EMERGENCE OF INTERNATIONAL HUMANITARIAN LAW
Abstract
International Humanitarian Law is a
branch of international law which governs the mutual relations of the States.
It is the result of a compromise between the requirements of war and the laws
of humanity. There was a need for international norms to reduce the impacts of war
on human being and their property. Thus. In this paper, researcher simply tried
to present a brief history of International Humanitarian Law in this paper.
Key words: International
Humanitarian Law, warfare, International Committee of the Red Cross.
A glance at the emergence of International Humanitarian Law
The International law that regulates
the relations between the different States also includes International
humanitarian law. For humanitarian grounds, it aims to lessen the effects of
armed conflicts. It also tries to protect those persons who are no longer participating
in hostilities as well as the sick and wounded, prisoners and civilians. It
also specifies the rights and duties of the parties to a conflict in the
conduct of hostilities.
The objective of international
humanitarian law is to reduce and alleviate the suffering caused by conflict. The
rules of international humanitarian law are the outcome of a delicate balance
between the requirements of battle and the humanitarian laws. Humanitarian law
is a very delicate subject and it is expected that, it must not be tampered
with. It must be
respected under all circumstances, in order to preserve the human being and
their lives. Every one of us may contribute to a better understanding of its underlying
principles and goals, paving the path for greater respect for them.
Initiative by Henry Dunant
Henry Dunant,[1] in
response to the suffering of the battlefield of Solferino and the agony of so
many wounded soldiers lying untended, proposed action on the following two
levels[2]:
- 1st, he suggested to establish an
organization to assist wounded military personnel, which is known as the Red
Cross; and
- 2nd,
he proposed to sign the 1st “Geneva Convention”, an international treaty
that guarantees the protection of the wounded on the battlefield.
Dunant intended to lessen the misery
brought on by war by taking these two actions. Later in his life, he only
argued for an end to war. In this paper a small discussion is revealed on his
second suggestion, namely the creation of humanitarian law.
The phrase “International
Humanitarian Law” relates to the laws that govern the conduct of war. The
International Committee of the Red Cross is considered as its guardian. According
to this Committee,[3] “International Humanitarian Law is part of
the body of International Law, which governs the relations among different
states. Further, it aims to protect persons who are not or are no longer taking
part in the hostilities, and to define the rights and obligations of the
parties to a conflict in the conduct of hostilities.”[4]
Till 1960s, word “International
Humanitarian Law” was not used to define as a subject of law, and even in the
1960s, when it was first time used; it suggested a different view of the law in
comparison to the existing view. Prior to this time, popular and scholarly use
referred to the ‘Laws of War’, and in 1960s, to the ‘Laws of Armed Conflict’ in
an attempt to understand de facto and
internal conflicts.[5] The term ‘Rules of War’ or ‘Armed Conflict’
did not only refer to a new name for the similar kind of legislation. Rather,
it was an acceptable term for a separate legal notion and set of regulations.
The ‘Laws of War’ were defined as ‘Rules of the Law of Nations governing Warfare.’[6]
In 1968, the ‘International
Conference on Human Rights’ in Teheran was held to mark the 20th anniversary of
the ‘UN Declaration of Human Rights’. Its aim was to promote human rights
implementation. This Conference culminated in the adoption of the significant
Resolution XXIII on human rights in armed situations. Although, this Conference
did not achieve its stated objectives, it established the 1st recognized
link between human rights and the ‘Rules of Armed Conflict’.[7]
In 1968, the UN General Assembly
passed the Resolution on ‘Respect for Human Rights in Armed Conflicts’,
emphasizing the significance of upholding humanitarian principles in all armed
conflicts and directing the Secretary-General to look into the need for additional
humanitarian conventions at international level. The issue was discussed
further at the UN General Assembly's 24th, 25th, and 26th sessions.[8] In
1969, report on ‘Respect for Human Rights in Armed Conflict’ was presented by the
Secretary-General. It included a 'historical study of international
humanitarian instruments pertaining to armed conflict. It also examined the
relationship between the Geneva Conventions and UN human rights instruments and
evaluated methods to ensure the respect of humanitarian principles in all armed
conflicts.[9]
As requested by Resolution 2597
(XXIV), the Secretary-General issued a report during the 25th session. In this
report, a special attention was given to the need for protection of civilian
and combatant rights in conflicts arising from peoples' struggles for
liberation. Apart from this, the better application of existing Humanitarian International
Conventions and Rules to such conflicts was also highlighted in this report.[10]
Further, ICRC also decided to hold a meeting on the reaffirmation and
development of International Humanitarian Law.’ At 26th session, two more
resolutions on the similar terms were also adopted. [11]
As a result, UN General Assembly
emphasized upon promoting the specific subject of human rights in armed
conflict. States had not yet considered or discussed "international
humanitarian law.’
Role of International Committee of Red Cross
When the ‘International Committee of
the Red Cross’ involved in the discussion at the UN General Assembly, the
changes of human rights in armed conflict into ‘International Humanitarian Law’
was happened. Both the ICRC and UN Secretary-General emphasized upon the
importance of partnership between the two organisations. In 1969, the
International Committee of Red Cross convened the Conference and passed the Resolution
XIII, which emphasized upon the necessity and urgency of reaffirming and
developing humanitarian rules of international law applicable in armed
conflicts of all kinds. This Conference was basically convened in order to
strengthen the affective protection of fundamental rights and was in accordance
with the Geneva Conventions of 1949.”[12]
Thus, by broadly interpreting the
term ‘humanitarian’, the International Committee of the Red Cross expanded the
scope of Red Cross law to cover concerns involving the means and techniques of
conflict. Nonetheless,
still it was not referred as “International Humanitarian Law”. In 1971, ICRC
convened its Conference of Government experts by naming ‘Conference of
Government Experts on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts’. The ICRC explained it, now that International
humanitarian law would refer to rules and principles of the law of armed conflict
that are clearly humanitarian in nature, namely those rules which protect human
beings and their property.[13]
Thus laws of war had been replaced by international humanitarian law.
Steps towards formal recognition of International
Humanitarian Law
Despite the fact that, the term ‘International
Humanitarian Law’ may have been coined by the beginning of the 1974, but its
actual principles were debated throughout the Conference and even after the
conference was overe. In this Conference all the delegates expressed different
views about what international humanitarian law was and should be. Some
delegates contended that the principle of distinction should forbid the use of
some contemporary weaponry, while others said that it could not. Some argued that
the principle of proportionality should not be included in international
humanitarian law since it provided military commanders an unrestricted
authority to launch an assault if they believed it would provide a military
advantage. In response, the United Kingdom, Australia, and the United States
contended that the proportionality concept should be preserved. [14]
By adopting imprecise, confusing
wording in the final text, the delegates finally managed to reconcile, or
overlook, their disagreements.
The phrase proportionate was removed
from the relevant articles, which alleviated worries regarding proportionality.
The regulations concerning indiscriminate strikes remained vague. Many of the
concerns about the consequences of Additional Protocol II on national
sovereignty were resolved. In Article 50, civilians were defined for the first
time and granted exceptional protection. Protocol I was a response to the new
codification of the ‘principles of proportionality and discrimination’, This
Protocol demanded that precautions be taken to protect civilians and prohibited
reprisals against civilians and civilian starvation, which had previously been permitted
under the laws of war. Civilians
are now protected during internal armed conflicts under the Additional Protocol
II.
The ICRC continued to promote
Additional Protocol I, urging governments to ratify the Protocol and put its
principles into action, it met with lot of resistance. Many judicial and
military critics questioned Additional Protocol I's worth and authority.
As a result, the Additional Protocol
I's status was unknown at the beginning of the 1990s. However, this ambiguity
had been overcome by the adoption of Additional Protocol I as customary law and
by embracing of international humanitarian law's humanitarian ideals. This
shift occurred as rapidly and the term ‘international humanitarian law’ first
at the beginning of the 1990s emerged. The new focus was on war victims and the
crimes perpetrated against them, including crimes against humanity, sexual
brutality, and genocide. Although the issue of the validity of Additional
Protocol I had been dormant for many years, it was reawakened when North
Atlantic Treaty Organization invaded in Kosovo in 1999.
Protocol I, an addendum to the 1949
Geneva Conventions, serves as the foundation for this assessment of North
Atlantic Treaty Organization bombardment. Most of the North Atlantic Treaty
Organization (NATO) nations have accepted this Protocol, and the US government
said that it recognises all essential requirements. The essential principle of
Protocol I, and of war rules in general, was the civilian population and
individual civilians are entitled to universal protection from military
actions. This is largely determined by the necessity that attackers must take
all reasonable steps to avoid or minimise injury to civilians, and may not
attack both combatants and civilians indiscriminately. Thus, by the end of the twentieth
century, it had become a genuinely international humanitarian law, one in which
humanitarian concerns superseded military necessity. Indeed, military necessity
was rarely emphasised in the Kosovo discussion.[15]
Thus, in the twenty-first century,
international humanitarian law evolved additional characteristics, most notably
a more explicitly stated relationship with human rights law. As a result, the
history of international humanitarian law was shaped by two eras of rapid
development. It all started in the 1970s, when it was suddenly recognised as a
legal profession. By the end of the 1990s, Additional Protocol I was widely
acknowledged as the basis for the strict understanding of international
humanitarian law as the ius in bello.
As of a result, the United Nations
Charter clearly forbids using force or threatening to use force against other
countries. Since 1945, states can no longer settle their differences through
the use of war. Thus, International conventions were required lessen the
impacts of war on people and property, and also to protect the vulnerable
people. That is the purpose of International Humanitarian Law, which finds its
expression in the Geneva Conventions and their Additional Protocols, as well as
in substantial body of customary law as a key supplemental source of law.
*
Associate Professor, JEMTEC Deptt. of Law (GGSIPU), Former Assistant Professor
(Amity Law School, Delhi, GGSIPU) Noida and Former HOD at CPJ-CHS & SOL
(GGSIPU) Narela.
*
Associate Professor, JEMTEC Deptt. of Law (GGSIPU), Former Assistant Professor
(Amity Law School, Delhi, GGSIPU) Noida and Former HOD at CPJ-CHS & SOL
(GGSIPU) Narela.
[1] The man
whose vision led to the creation of the worldwide Red Cross and Red Crescent
movement. He was the witnessed of the battle of Solferino in 1859.
[2]
Hans-Peter Gasser, “International humanitarian law and the protection of war
victims”, Available
at: https://www.icrc.org/en/doc/resources/documents/misc/57jm93.htm.
(Last visited on 16th May, 2023).
[3] “War and International Humanitarian Law”, Available at: www.icrc.org/eng/war-and-law/overview-war-and-law.htm (Last visited 15th May,
2023).
[5] Schwarzenberger, “From the
Laws of War to the Law of Armed Conflict”, Journal of Public Law 17
(1968) p.61.
[6]
Oppenheim, International Law: A Treatise (1921),p.84.
[7] Amanda
Alexander, “A Short History of International Humanitarian Law”, The European Journal of International Law
26( 2015) p. 119. Available at:
https://academic.oup.com/ejil/article/26/1/109/497489. (Last visited on 09 May,
2023).
[8] Respect
for Human Rights in Armed Conflict, UN General Assembly Resolution 2444 (XXIII)
(1968). Available at:
file:///C:/Users/Arrow%20IT/Downloads/A_RES_2444(XXIII)-EN.pdf (Last visited on 16th May, 2023).
[9] Report of the
Secretary-General, Agenda Item 61, UN Doc. A/7720 (1969). Available at: file:///C:/Users/Arrow%20IT/Downloads/A_7720-EN.pdf .
(Last visited on 23rd April, 2023).
[10] Report of the
Secretary-General, Agenda, Item 79, UN
Doc. A/8052 (1970). 8. Available at: https://digitallibrary.un.org
(Last visited on 16th
May, 2023).
[11] Respect for Human Rights in
Armed Conflicts, UN General Assembly Resolution 2853 (XXVI) (1971). Available at:
https://digitallibrary.un.org/record/192150?ln=en (Last visited on 29th March,
2023).
[12] ICRC, Conference of Government Experts on the
Reaffirmation and Development of International Humanitarian
Law Applicable in Armed Conflicts, Geneva, ((Geneva,
24 May - 12 June 1971) p. 11. Available at:
ttps://library.icrc.org/library/docs/CD/CEG_1971_RAPPORT_ENG.pdf (Last visited
on 16th May, 2023).
[13] Ibid.
[14] Supra note 7 at 124.
[15] “Civilian Deaths in the NATO Air Campaign (2000)”, Available
at: www.hrw.org/reports/2000/ nato/index.htm
. (Last visited on 21st March, 2023).
Article Information
A GLANCE AT THE EMERGENCE OF INTERNATIONAL HUMANITARIAN LAW
Authors: DR. SIMMI VIRK
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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