International Humanitarian Law and the International Red Cross and Red Crescent Movement

Aldo Zammit Borda

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781317987444
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides a key reference on the role of the Commonwealth and its member states in relation to international humanitarian law (IHL). It provides insights in the implementation of IHL in Commonwealth states and, particularly, the challenges faced by small states. It examines the progressive development of IHL in the Commonwealth and provides an analysis of some of the landmark decisions emerging from the Special Court for Sierra Leone.

The book was developed collaboratively between the Commonwealth Secretariat and the International Red Cross and Red Crescent Movement. In this regard, it contains insights in the work of the Secretariat with regard to implementation of IHL and an assessment of legislation enacted by Commonwealth states as well as an accession chart to IHL instruments. It expounds on the work of the Movement, including the role of National Societies, the International Humanitarian Fact-Finding Commission, and the development of international disaster response law, rules and regulation.

This book was based on a special issue of Commonwealth Law Bulletin.

Chapters

Introduction to International Humanitarian Law

ALDO ZAMMIT BORDA

Legal and Constitutional Affairs Division, Commonwealth Secretariat

International Humanitarian Law (IHL) is that portion of international law which is inspired by considerations of humanity. It aims to minimize the suffering of those not, or no longer, taking part in hostilities and to render the fighting more humane by restricting the use of barbaric weapons. Although the origins of contemporary IHL can be traced back to the nineteenth century, it is based on principles and practices which are much older. The two principal sources of IHL are the Hague and Geneva Conventions, the former setting out restrictions on the means and methods of warfare and the latter providing protection to certain categories of vulnerable persons. It is generally accepted that a large portion of the principles permeating IHL reflect customary international law and, in some cases, peremptory law (jus cogens). As such, it is binding on all States, irrespective of whether they have acceded to the relevant treaties. Although IHL has made a difference in protecting vulnerable individuals and restricting the means and methods of warfare, tragically, there are countless examples of violations of IHL in armed conflicts around the world and a number of other challenges still remain.

Introduction

International Humanitarian Law (IHL), which is also known as the ‘Law of War’ and the ‘Law of Armed Conflict’, is that portion of international law which is inspired by considerations of humanity and is centred on the protection of certain vulnerable individuals in time of armed conflict and on rendering the fighting more humane.

Professor Jean Pictet, who played a major role in the work of developing IHL undertaken by the International Committee of the Red Cross (ICRC),¹ has argued that the provisions of IHL are in fact a transposition into international law of moral, and more specifically, humanitarian concerns:

It is precisely because this law is so intimately bound to humanity that it assumes its true proportions, for it is upon this category of law, and no other, that the life and liberty of countless human beings depend if war casts its sinister shadow across the world.²

This article aims to provide a general introduction to IHL. It will firstly outline the origins of contemporary IHL from the latter part of the eighteenth century and the nineteenth century. It will proceed to consider its sources, including treaties and customary law. The two areas covered by IHL, namely, means and methods of warfare; and protection of certain categories of persons are discussed next, followed by a discussion on IHL’s application. The article concludes by setting out some challenges to the effective development and implementation of IHL.

Origins

Although the origins of contemporary IHL can be traced back to the nineteenth century, it is based on principles and practices which are much older.³ In the sixteenth and seventeenth centuries, the rationale of the laws governing the conduct of hostilities was to minimize the harm inflicted in the exercise of the right of a sovereign to wage a ‘just war’:

The balance of evil and good was sought to be struck by reference to the doctrine of necessity. It was held to be a ‘general rule from the law of nature’ that as long as the end pursued by the war was just, armed violence necessary to achieve that end … was permissible. No distinction was drawn per se between soldiers and civilians, nor between military and civilian property, although reason dictated that the killing of civilians and the destruction of civilian property was usually unnecessary and therefore unlawful.⁴

The dominance of autonomous sovereign States in the latter part of the eighteenth century and the nineteenth century,⁵ together with the growing influence of humanism, allowed for an increased focus on the conduct of warfare, and what is today known as IHL emerged as a set of independent rules⁶ which represent a careful balance between the requirements of humanity and military necessity.⁷

The 1864 Diplomatic Conference, which was convened by the Swiss government and chaired by General Guillaume-Henri Dufour,⁸ adopted the Geneva Convention for the Amelioration of the Condition of the Wounded on the Field of Battle (Red Cross Convention). This Convention laid the foundations for contemporary humanitarian law. It was chiefly characterized by:

1. standing written rules of universal scope to protect the victims of conflicts;

2. its multilateral nature, open to all States;

3. the obligation to extend care without discrimination to wounded and sick military personnel;

4. respect for and marking of medical personnel, transports and equipment using an emblem (red cross on a white background).⁹

Following adoption of this Convention, the First and Second Hague Peace Conferences, held in 1899 and 1907 respectively, aimed partly to prevent war and partly to define rules of warfare.

The 1899 First Hague Peace Conference was convened with the object of seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.¹⁰ This Conference, which was summoned without reference to any particular war, was regarded as the culmination of the peace movement.¹¹

The Conference adopted three Conventions and three Declarations.¹² In its Final Act,¹³ the Conference also expressed the wish that a number of outstanding issues, such as the limitation and/or reduction of armaments and the rights and duties of neutrals, be considered by a subsequent Conference.

The 1907 Second Hague Peace Conference was thus convened for the purpose of giving a fresh development to the humanitarian principles which served as a basis for the work of the First Conference of 1899.¹⁴ The Conference adopted 13 Conventions and two Declarations.¹⁵

Though not negotiated in the Hague, the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating Gas, and for Bacteriological Methods of Warfare, is considered a further addition to the Hague Conventions.¹⁶

The 1899 and 1907 Peace Conferences have been hailed as ‘landmarks’ and an ‘epoch in the history of international law’,¹⁷ and much of the law they gave rise to is accepted as customary international law.

Following the atrocities of World War II, four Geneva Conventions were concluded in 1949 to mitigate the effects of war by protecting people who do not take part in the fighting (civilians, medics, chaplains, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war), known as persons hors de combat.¹⁸ These Conventions recognize two types of violations, namely: ‘grave breaches’ and other prohibited acts not falling within the definition of grave breaches.¹⁹

The first Geneva Convention (‘for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field’) and the second Geneva Convention (‘for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea’) are similar, covering land and sea respectively. They provide minimum standards of protection for members of the armed forces who become wounded or sick.

The third Geneva Convention (‘Relative to the Treatment of Prisoners of War’) lays down minimum standards of protection for members of the armed forces who are captured by the enemy. Prisoners of war must, inter alia, be treated humanely with respect for their persons and their honour and quickly released and repatriated when hostilities cease.

The fourth Geneva Convention (‘Relative to the Protection of Civilian Persons in Time of War’) covers all civilians who do not belong to the armed forces, take no part in the hostilities and find themselves in the hands of the Enemy or an Occupying Power. The Convention lays down minimum standards of protection for such civilians, which include protection against acts or threats of violence, insults and public curiosity, and protection from being used to shield military operations.

The 1949 Geneva Conventions were supplemented in 1977 with the addition of two Protocols on the Protection of Victims of International Armed Conflicts and Protection of Victims of Non-International Armed Conflicts, and in 2005 by the addition of a third Protocol on the Red Crystal as an additional distinctive emblem.

Sources

The corpus of international law devoted to IHL has expanded over the past decades, primarily because of renewed interest in international dispute resolution, the decline in the traditional doctrine of sovereignty and the related growth of norms recognizing the enforceability of rights of individuals against states for the violation of humanitarian legal norms.²⁰

The sources of IHL are the same as those of international law generally, a basic description of which may be found in Article 38 of the Statute of the International Court of Justice,²¹ namely:

1. international conventions;

2. international custom;

3. general principles of law; and

4. judicial decisions and the teachings of the most highly qualified publicists as subsidiary sources.

These sources of International Humanitarian Law have been considered at length in a number of other publications²² and only a general outline is required here. As regards international conventions on IHL, in addition to the Hague and Geneva Conventions, and their Protocols,²³ one could add:

1. the 1954 Protection of Cultural Property in the Event of Armed Conflict Convention;

2. the 1972 Biological and Toxin Weapons Convention;

3. the 1976 Environmental Modification Convention;

4. the 1980 Conventional Weapons Convention (and its five Protocols);

5. the 1993 Chemical Weapons Convention;

6. the 1997 Ottawa Convention on Anti-Personnel Landmines;

7. the 1998 Rome Statue of the International Criminal Court; and

8. the 2000 Optional Protocol to the Convention on the Rights of the Child.²⁴

As regards international custom, in December 1995, the 26th International Conference of the Red Cross and Red Crescent officially mandated the ICRC to prepare a report on customary rules of international humanitarian law applicable in international and non-international armed conflicts.²⁵ Following extensive research and widespread consultation with experts, this report was published in 2005²⁶ and identified over 160 IHL rules of customary international law, categorized in six parts:

1. the Principle of Distinction;

2. Specifically Protected Persons and Objects;

3. Specific Methods of Warfare;

4. Weapons;

5. Treatment of Civilians and Persons Hors de Combat; and

6. Implementation.

Scope

IHL covers two areas:

1. means and methods of warfare; and

2. protection of certain categories of persons.

(1) Means and methods of warfare

The recognition that there have to be restrictions on the means and methods of warfare is ancient.²⁷ Article 22 of both the 1899 and 1907 Hague Conventions respecting laws and customs of war on land provide: ‘The right of belligerents to adopt means of injuring the enemy is not unlimited’.

IHL prohibits means of warfare which:

1. fail to discriminate between those taking part in the fighting and those, such as civilians, who are not taking part in the fighting;²⁸

2. cause superfluous injury or unnecessary suffering; and/or

3. cause severe or long-term damage to the environment.

On the basis of these criteria, a number of means of warfare have become prohibited under IHL, including asphyxiating gases and bacteriological methods of warfare; and certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects, such as laser-blinding weapons.

As regards prohibited methods of warfare, these i...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Foreword
• Preface
• Chapters
• Legislation
• IHL Treaty Accession
• Model Laws
• Index