HUMAN RIGHTS LAW Ahmed T. Ghandour.

CHAPTER 9. HUMANITARIAN LAW.

1. THE LEGAL FOUNDATIONS.

INTRODUCTION.  It is important to remember that, the origins of IHL had been outlined in Chapter 1, when we talked about the efforts of the 19 th century to clear the first matters which concerned the Red Cross of protected the sick and wounded in combats in land and sea, and then how they gained respect and recognition, till it achieved it’s placement in the world of today.

WHAT IS IHL?  International humanitarian law (IHL) is the law that regulates the conduct of war (jus in bello).  It is that branch of international law which seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants.  IHL is inspired by considerations of humanity and the mitigation of human suffering. "It comprises a set of rules, established by treaty or custom, that seeks to protect persons and property/objects that are (or may be) affected by armed conflict and limits the rights of parties to a conflict to use methods and means of warfare of their choice.

 It includes "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law.  It defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning non-combatants.  It is designed to balance humanitarian concerns and military necessity, and subjects warfare to the rule of law by limiting its destructive effect and mitigating human suffering.  International humanitarian law operates on a strict division between rules applicable in international armed conflict and internal armed conflict. This contradiction is widely criticized

THE RELATIONSHIP BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW.

 The relationship between international human rights law and international humanitarian law is disputed among international law scholars.  This discussion forms part of a larger discussion on fragmentation of international law.  While pluralist scholars conceive international human rights law as being distinct from international humanitarian law, proponents of the constitutionalist approach regard the latter as a subset of the former.  In a nutshell, those who favors separate, self-contained regimes emphasize the differences in applicability; international humanitarian law applies only during armed conflict.  On the other hand, a more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict and military occupation (i.e., IHL) or to certain groups of people including refugees (e.g., the 1951 Refugee Convention), children (the 1989 Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).

IHL VS. IHRL. IHL  Applies in situations of armed conflict  Rights are non-derogable.  Seeks to protect by limiting suffering caused by war.  Monitored by ICRC.  Emphasizes cooperation between parties to the conflict. IHRL  Applies in war and in peace.  Certain rights may be suspended in emergencies.  Seeks to protect the individual and promote development by limiting state power.  Monitored by various mechanisms, e.g. treaty bodies, courts, individuals.

TWO HISTORICAL STREAMS:  Modern international humanitarian law is made up of two historical streams:  the law of The Hague, referred to in the past as the law of war proper; and  the law of Geneva, or humanitarian law.  The two streams take their names from a number of international conferences which drew up treaties relating to war and conflict, in particular the Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first which was drawn up in  Both are branches of jus in bello, international law regarding acceptable practices while engaged in war and armed conflict.

THE LAW OF THE HAGUE.  The Law of The Hague, or the laws of war proper, "determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm.”  In particular, it concerns itself with the definition of combatants;  establishes rules relating to the means and methods of warfare;  and examines the issue of military objectives.

 The next major developments in international humanitarian law regarding methods and means took place in 1899 at the First Hague Peace Conference.  It was successful in adopting three conventions:  First, the Convention for the Peaceful Adjustment of International Differences.  Second, the Convention on Respecting the Laws and Customs of War on Land, which contained annexed Regulations concerning certain aspects of land warfare.  The Conference also adopted the Convention for the Adaptation to Maritime Warfare  In 1907 the Second Peace Conference was organised. Its main goal was to ensure international peace by developing more specified treaties. Therefore, 13 new conventions and one declaration were adopted.

THE LAW OF GENEVA.  The Geneva Conventions are the result of a process that developed in a number of stages between 1864 and  It focused on the protection of civilians and those who can no longer fight in an armed conflict.  As a result of World War II, all four conventions were revised, based on previous revisions and on some of the 1907 Hague Conventions, and readopted by the international community in  Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars.

 The first three Geneva Conventions were revised, expanded, and replaced, and the fourth one was added, in  The Geneva Convention for the Amelioration (Improvement) of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted in  It was significantly revised and replaced by the 1906 version, the 1929 version, and later the First Geneva Convention of  The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea was adopted in  It was significantly revised and replaced by the Second Geneva Convention of  The Geneva Convention relative to the Treatment of Prisoners of War was adopted in  It was significantly revised and replaced by the Third Geneva Convention of  The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War was adopted in 1949.

II. THE GENEVA PROTOCOLS.

 There are three additional amendment protocols to the Geneva Convention:  Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries.  Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries.  Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by seventeen countries and signed but not yet ratified by an additional 68.  The Geneva Conventions of 1949 may be seen, therefore, as the result of a process which began in Today they have "achieved universal participation with 194 parties." This means that they apply to almost any international armed conflict.  The Additional Protocols, however, have yet to achieve near- universal acceptance, since the United States and several other significant military powers (like Iran, Israel, India and Pakistan) are currently not parties to them.