Humanitarian Law and Human Rights

International humanitarian law (IHL) is a set of rules that 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.[1] IHL seeks to –

  • protect persons who are not or are no longer taking part in the hostilities,
  • restrict the methods and means of warfare employed, and
  • resolve matters of humanitarian concern resulting from war.

Also known as “the law of armed conflict” or ”the law of war,” humanitarian law aims to limit the effects of war on people and property and to protect particularly vulnerable persons by regulating the way in which military operations are conducted.

Although human rights and humanitarian law are concerned with the protection of the individual and complement each other, they differ in their focus. Humanitarian law applies specifically to situations of armed conflict, while human rights protect the individual in times of both war and peace.

Unlike human rights treaties, which usually have a monitoring body to which individuals and states can submit complaints, humanitarian law relies on a combination of confidential oversight and fact finding, informal procedures, enforcement through the laws of the state parties to the conventions, and, to a limited extent, actions before international or internationalized legal bodies. The Geneva Conventions of 1949 and the Additional Protocols require the governments who ratify the conventions to adopt a number of measures in order to assure compliance with these treaties. Among these are:

  • To train their armed forces in “the laws of war”
  • To enact national law that conforms to the standards of the Geneva Conventions, such as war crimes
  • To prosecute persons who have committed breaches of international humanitarian law.

International Humanitarian Law has been enhances by the establishment of the International Criminal Court (ICC). Located in The Hague, Netherlands, the ICC was established in 2002 as a permanent international tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.

The development of Humanitarian Law played an important role in the development of human rights in general. For more information, see Additional Materials in the Materials for Teaching, Learning, and Action section.

 

The Development of Humanitarian Law

The International Committee of the Red Cross reminds that “International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs.”

However, only in the 19th century did the international community agree to universal codification of laws governing the conduct of treatment of persons in warfare. Under the leadership of Henri Dunant, founder of the International Red Cross, the Geneva Convention of 1864 established the first universally applicable international humanitarian law. Immediately prior to the adoption of the First Geneva Convention, President Abraham Lincoln issued Military General Order 100, the “Lieber Code,” recognized by the ICRC as “the first attempt to codify the laws of war.”  The United States ratified the first Geneva Convention in 1882, spurred on by the advocacy of Clara Barton.

Subsequent agreements developed these initial laws were further, often in response to new methods of warfare. For example, World War I saw the first large-scale use of poison gas and aerial bombardment, and in World War II the number of civilian casualties equaled that of military personnel.

At the conclusion of World War II, the victorious allies in the European theater conducted formal trials of major Nazi criminals at Nuremberg The Nuremberg Tribunal relied on principles of jurisprudence articulated by Robert Jackson, the Tribunal’s chief prosecutor and a US Supreme Court Justice. Nuremberg established “crimes against humanity” as conduct illegal even in time of armed conflict and even within an individual nation.

Following World War II, the United Nations was established in 1947 and the Universal Declaration of Human Rights (UDHR) adopted in 1948. At the same time humanitarian law advanced further with the Diplomatic Conference of Geneva 1949, as well as the adoption of two Additional Protocols of 1977, further limiting the means of warfare and provided protections to non-combatants civilians, and prisoners of war. The recodification of the Geneva Conventions in 1949 included the addition of the 4th Geneva Convention, which specifically addresses “the Protection of Civilian Persons in Time of War,” including persons living under military occupation. In the aftermath of the atrocities of the Holocaust, the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) of 1948 outlawed acts that were carried out with the intention of destroying a particular group.

In addition to these conventions, international humanitarian law has been developed and refined through several statutes and precedents laid down by international tribunals set up to try war criminals such as the International Court of Justice (ICJ, World Court). In particular The Rome Statute of 1998 created the International Criminal Court (ICC) and spelled out the crimes that the court would deal with (e.g. war crimes, crimes against humanity, and genocide).[2]

Fundamental principles of humanitarian law

International humanitarian law aims to limit the suffering caused by war by forcing parties engaged in a conflict to adhere to the following principles and practices:

  • The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property.
  • Neither the civilian population as a whole nor individual civilians may be attacked.
  • Attacks may be made solely against military objectives.
  • People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavorable distinction whatever.
  • It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.
  • Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare.
  • It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering.
  • The wounded and sick must be collected and cared for by the party to the conflict which has them in its power.
  • Medical personnel and medical establishments, transports and equipment must be spared.
  • The Red Cross or Red Crescent [or the recently approved red crystal] on a white background is the distinctive sign indicating that such persons and objects must be respected.
  • Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions.
  • They must be protected against all acts of violence or reprisal.
  • They are entitled to exchange news with their families and receive aid.
  • They must enjoy basic judicial guarantees.

The Geneva Conventions have been ratified by all nations and apply to all parties to armed conflict, governmental and non-governmental. Grave breaches of the Geneva Conventions are considered crimes of universal jurisdiction and may be prosecuted by any nation party to the Conventions.[3]

Related International Documents:

 

[1] International Committee of the Red Cross definition