BADIRUJJAMAN


Like international law, international humanitarian laws (IHLs) are also a comprehensive field of study because they consist of many conventions and customary laws. Basically, IHLs refer to the laws of war or the laws of conducting forces. 

IHLs apply only during armed conflicts (both international and non-international). They do not apply to internal disturbances or tensions (demonstrations, isolated acts of violation), but they can apply only to domestic conflicts, depending on their expansion. 

Their aim is to bring a balance between humanity and the military campaign, though they do not concern themselves with or question the legitimacy of the conflicts. They just want to protect non-combatants by reducing atrocities and obliging international norms during armed conflicts.

Principles of International Humanitarian Laws (IHLs):

The principles are sourced in both customary international law as well as the sources examined in Module 3, in particular the four Geneva Conventions of 1949 and the two Additional Protocols of 1977

The core fundamental principles of IHLs are:

  1. The distinction between civilians and combatants
  2. The prohibition to attack those hors de combat (i.e., those not directly engaged in hostilities).
  3. The prohibition to inflict unnecessary suffering.
  4. The principle of necessity
  5. The principle of proportionality
  6. The principle of humanity


Two confusions about International Humanitarian Laws (IHLs):

While studying about IHLs generally, two types of confusion may arise among readers, namely:

  1. Are Human rights and IHLs the same concepts?
  2. What is the basic difference between the Hague Convention and the Geneva Convention?

For the former discussion, human rights and IHLs are different. “Human rights” refer to the rights and obligations that are treated by the government to its subjects in the national arena during peacetime. 

IHLs discuss how states behave in wartime situations with each other in international areas. For the latter category, Geneva Convention IV was intended to protect those who were no longer participating in the hostilities. And the Hague Convention intended the means and methods of warfare.


Who is protected under International Humanitarian Laws (IHLs)?

For answering this question, we first have to understand two basic concepts relating to IHL’s protection framework: combatant and protection.


Concept of Combatant in IHLs:

Combatant is the term used in the context of international armed conflicts. 

The definition of combatant includes members of the armed forces except medical and religious personnel, un-uniformed combatants who carry arms openly during military engagement, and paramilitary and special forces incorporated into the armed forces. ‘

Moreover, the rights and privileges of combatants are prescribed in articles 43–44 of Additional Protocol I of 1977.


Concept of Protection in IHLs:

State parties must have promised humane treatment based on humanity during armed conflicts. Because all the principles or customs of humanity must be included in times of conflict. 

Moreover, all the existing obligations relating to armed conflicts must have been obeyed by the state parties as they ratified the Geneva Convention and its Additional Protocol. All these will provide protection to noncombatants, which is the ultimate goal of IHLs. 


Persons protected under IHLs:

The Geneva Conventions and their Additional Protocols protect the sick, wounded, and shipwrecked not taking part in hostilities, prisoners of war, and other detained persons, as well as civilians and civilian objects. 

Indiscriminate killings in armed conflicts, irrespective of combatants and non-combatants, force conventions to adopt customary laws. The sole one of these was the idea of protected persons and objects.  

Before WWI, the primary objectives of the Red Cross were the protection or care of sick and wounded people in armed conflicts through the establishment of an emblem. The emblem also protects medical equipment, such as vehicles and medical buildings, as long as they are not being used for military purposes.

The concept of “prisoners of war” was incorporated into the convention to protect against inhuman treatment in the interwar period. ICRC visits to people deprived of their freedom cover some 70 countries and reach almost 500,000 detainees each year. Later, Geneva IV provides provisions for protecting civilians who are not involved in conflicts.

In Additional Protocols I and II, IHLs also provide provisions for women and children, as they are vulnerable victims of any armed conflict, whether it is international or non-international. These conflicts make people afraid; many of them become internally displaced people when the conflicts take place domestically. 

When they cross their own territory to protect themselves from such persecution, they become refugees, and IHLs have separate protection materials for refugees and internally displaced people. Moreover, humanitarian personnel are also protected persons under the IHL.

So these are the people who are supposed to be protected under IHLs during armed conflicts. 


Who are civilians and Who are not civilians?

Generally, Individuals are civilians, as they are not part of any military engagement in armed conflicts. International Humanitarian Laws (IHLs) provide protection to civilians by categorizing them distinctively under their provisions.

According to IHLs, a civilian is any individual who is not a member of one of the following groups:

  • the regular armed forces, even one that professes allegiance to a government or authority not recognized by the adverse power;
  • the armed forces of a party to the conflict, as well as militias or volunteer corps forming part of such armed forces;
  • all organized groups and units, as long as these groups and units are under a command that is responsible for the conduct of its subordinates, even if the party to the conflict to which it responds is represented by a government or authority not recognized by an adverse party.
  • organized resistance movements and other small armed groups (GCIII Arts. 4.a.1–3, 4.a.6; API Arts. 43, 50)

In international armed conflicts, military groups can be identified as they fight against states, but in non-international armed conflicts, armed groups may create confusion as ordinary civilians may be included in the conflicts because domestically, these conflicts may arise from different points such as popular uprisings, guerrilla warfare, movements, or terrorism.

Individual civilians may take part in any of these hostilities. So it creates difficulties for IHLs to identify who is civilian and who is combatant, as it is a matter of protection. 

Additional Protocols confirm that such people retain their civilian status and do not lose the protection that international humanitarian law provides for civilians, except during the period of direct participation in hostilities (API Arts. 45.1, 51.3; APII Art. 13.3).

Moreover, all civilians, without any adverse distinction and in all situations, must be protected from the effects of military operations (GCIV Art. 13). Hence, they may not be the target of fighting or attacks, and they have the right to receive the necessary assistance. 

This general system of protection is defined in Article 51 of Additional Protocol I. Articles 52 to 56 protect civilian objects, including those indispensable to the survival of the civilian population (API Art. 54).

The rule whereby civilians lose their protection against attack when and for such time as they take a direct part in hostilities is contained in Article 51(3) of Additional Protocol I. 

Armed groups most of the time state that they attack civilians because they become unable to distinguish who are civilians and who are not.

Article 53(3) of Additional Protocol II states that civilians have immunity until they are engaged in direct conflict. These rules are also included in the military manuals of most countries for both international and non-international armed conflicts. 

In the case concerning the events at La Tablada in Argentina, the Inter-American Commission on Human Rights held that civilians who directly take part in fighting, whether single or as members of a group, thereby become legitimate military targets, but only for as long as they actively participate in combat.

But the term “actively participate” or “directly participate” has no clear definition in the Geneva Convention and Additional Protocols. 

The Inter-American Commission on Human Rights has stated that the term “direct participation in hostilities” is generally understood to mean “acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and matériel”.

Besides, sometimes civilians work as spies, guards, couriers for the military, etc. So these facts make civilians lawless under the legal regime of IHLs.


Legitimization of attacks on civilians:

Is the presence of combatants among the civilian population legitimate for an attack on civilians? -not actually, because there are certain regulations to legitimize attacking. 

However, the first key principle regarding targets is the principle of distinction, namely that the belligerent must distinguish between combatant and non-combatant targets, and attack upon the latter category is prohibited. The principle is complemented by a second key principle: the principle of proportionality.

We may have to examine the proportionality of an attack in situations where the intent of the attacker is to target military objectives. But an attack is expected to cause civilian casualties or damage to civilian objects. 

IHLs don’t prohibit collateral damage (collateral damage is any death, injury, or other damage inflicted that is an unintended result of military operations) to civilians or civilian objects. It doesn’t even prohibit extensive collateral damage. 

However, IHLs prohibit any attacks that are expected to cause collateral damage, which is excessive in relation to the military advantage. So in cases where collateral damage is to be expected, the lawfulness of the attack must be assessed through a test of proportionality.

The proportionality test is a flexible tool that enables a balance to be struck between the expected loss of life or injury to civilians and damage to civilian objects and the concrete and direct military advantage anticipated from the attack. 

There, the tests of proportionality are very difficult to calculate. So let’s imagine that we are a legal adviser to a belligerent, and we must advise him about the legality of planning an attack against a school where all the military personnel are meeting. 

The attack could not be conducted when hundreds of children were leaving the school with their guardians. What would we advise? The killing of the enemy commanders may end the war, but the attack will cause very significant civilian casualties, even if very precise weapons are used.

Most often, proportionality tests become complicated by several elements in such circumstances. The first problem is that we are essentially trying to balance incommensurable values. Obviously, there is no recognized rate of exchange from schoolchildren to generals. 

The second problem comes from the fact that the proportionality tests are not concerned with the actual outcome of the attack but with the expected collateral damage and the anticipated military advantage. 

In short, it is a matter of expectation and anticipation. The assessment of the proportionality requirement is even more complicated due to the imprecise content of the two terms of the equation. Therefore, it will have to be made on a case-by-case basis after all precautionary measures have been taken.


Conclusion: 

International humanitarian law is the law of war. It provides protection to the sick, wounded, and shipwrecked not taking part in hostilities, prisoners of war, and other detained persons, as well as civilians and civilian objects. 

Moreover, IHLs discuss who is a civilian and who is not based on their engagement in hostilities. 

And one of IHL’s principles, the principle of proportionality, emphasizes that military attacks on non-military people will not be allowed unless they fulfill the requirements of IHLs.






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