International Humanitarian Laws
A. What is international humanitarian law ?
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.
International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practice considered by them as legally binding, and in general principles.
International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.
International humanitarian law – also called the law of armed conflict or the laws of war – regulates the conduct of warfare. Most of the applicable rules are to be found in the four 1949 Geneva Conventions and their two 1977 Additional Protocols. In addition, the
1907 Hague Conventions and the annexed Regulations lay down important rules on the conduct of hostilities, notably on military occupation. There are also several treaties that prohibit or restrict the use of specific weapons, including anti-personnel mines, exploding or expanding bullets, blinding laser weapons, and, most recently in 2008, cluster munitions.
An important distinction exists between international armed conflicts and those of a “non-international character”. (For a detailed discussion of this issue, see our paper on the legal qualification of armed conflict.) The legal regulation of international armed conflicts is more detailed and the protection afforded by the law greater than is the case with non-international armed conflicts. A notable example is the obligation on parties to an international armed conflict to accord captured combatants the status of prisoner of war (POW) with the associated rights and obligations. This prevents the prosecution of a POW for the mere fact of participation in hostilities. There is no such right to POW status in the law governing non-international armed conflicts (although captured fighters are still entitled to legal protection). (1)
The basis of international humanitarian law is the principle of distinction, which applies in all armed conflicts. This principle obliges “Parties to a conflict” (i.e. the warring parties, whether states or non-state armed groups) to target only military objectives and not the civilian population or individual civilians or civilian objects (e.g. homes, schools, and hospitals). Failing to make this distinction in military operations represents an indiscriminate attack and is a war crime.
Similarly, although it is understood that it is not possible for parties to a conflict always to avoid civilian casualties when engaged in military operations, international humanitarian law also requires that parties to a conflict take precautions in any attack to minimise civilian deaths and injuries. Attacks likely to cause deaths or injuries among the civilian population or damage to civilian objects which would be "excessive" compared to the expected military advantage must be cancelled or suspended.
These rules are generally considered to be customary international law, which binds every party to a conflict – government or non-state armed group – whether or not the state on whose territory a conflict occurs has ratified the relevant treaty.
For questions or further discussion, contact Stuart Maslen at rulac (at) adh-geneva.ch
1. For example, according to common Article 3 to the four 1949 Geneva Conventions, which governs conflicts of a non-international character: "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
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