30 Applicability of IHL in Armed Conflict

Rohini Sen

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Table of Contents

  1. Learning Outcomes

  1. Introduction

  1. The scope of NIACs (Non-International Armed Conflict) & Transnational NIACs

  1. Case Study

  1. Internationalized Non-International Armed Conflict

  1. The broader conceptual clash between Human rights law and Humanitarian Law

  1. The Problems with Judicial Enforcement

  1. Case Study 2

  1. The problem with regulation of Humanitarian Assistance in Armed Conflict

  1. Conclusion

1. Learning Outcomes:

  • To give students an overview of different international declarations, conventions and charters underlying the scope and limits of International Humanitarian Law, in relevance to Armed conflicts.
  • By the end of the chapter, students will have a thorough understanding of applicability of IHL in armed conflict, and critically evaluate its strength and limits.

2. Introduction:

The Geneva Conventions apply from the inception of the conflict to its end; however, the rules operating under armed conflict are ambiguous and needs further application of law operating differently in international and non-international conflicts. Hostilities that take place between countries are governed under the purview of Geneva Conventions, Additional Protocols inter alia other legislations, governing certain other specific acts of war. The general state of war between countries is covered under IHL irrespective of the intensity, duration or scale of the conflict. According to the official commentary of the International Committee of the Red Cross (ICRC), the conditions for such war are satisfied whenever any difference arises leading to the use of armed force between the militaries of two states. The convention applies to i) warring two warring state parties or more, ii) between state and non-state actors and iii) between non-state actors in an international conflict. The murky situations where the determination of state or non-state actors between countries or within the countries are areas that IHL has addressed, but not without its own difficulties. There has been much controversy surrounding the definition of “armed conflict” in relevance to Common Article 3(which mainly talks about protection of rights of Prisoners of War), for not being able to substantially clarify ambiguities in the traditional approach used. Recent contemporary developments raise essential questions regarding the temporal scope of application of international humanitarian law which includes: the prevalence of non-international armed conflicts; changes in military tactics, operations and participants; the existence of non-traditional conflicts with evolving or open-ended objectives; and the emergence of conflicts which foreclose the possibility of diplomatic resolutions.

3. The scope of NIACs (Non-International Armed Conflict) & Transnational NIACs

For the last many decades, 60 countries have been the theatre of armed conflicts, and most people who suffer are civilians and innocents. Civilians continue to be the primary targets of IHL violations, especially Common Article 3. Repetitive and recurring violations in hostilities include deliberate attacks against civilians, destruction of infrastructure and goods essential to survival, and forcible displacement of the civilian population. Civilians also directly suffer from indiscriminate methods and means of warfare leading to overall deprivation of their personal liberty albeit other serious violations by the state as well as non-state actors like murder, forced disappearance, torture and cruel treatment and other forms of outrage upon their personal dignity.

Against such a backdrop, governments continue to deny any involvement and had any Non-international Armed conflicts, and claim that IHL was kept in mind and was applied, making accountability a virtually impossible fate. Most governments for the sake of protecting their national sovereignty refuse to acknowledge the need for the ICRC and other components of IHL that enforce and uphold the values, customs and humanitarian aspects of war. In recent years, the ICRC has observed two main features of armed conflict, first being the diversity of situations of armed conflict, which range from use of advanced technology to asymmetric confrontations to conflicts characterised by low technology. Even though recently there have been emergences of International Armed conflicts, NIACs remain to be the most predominant form. This has led to a state weakness leading to emergence of local militias and armed groups to operate, subsequently adding to the looting, trafficking, extortion and kidnapping become the economic means and strategies sustainedby violence and domestic, national and international interests amounting to more suffering on civilians

In times where armed conflict has become all the more convoluted and complex, it becomes necessary to address as to what extent IHL has been able to tackle and handle conflict, how it has been able to do so, and what are the obstacles and limits that hinder its readiness and ability to prevent such incidents.

4. Case Study:

Contemporary NIACs are often transnational in nature. In spite of the armed hostilities begin domestic or national, many armed conflict might cover the territories of several states. For instance, the example of US-led war on terror, elucidates the point further. Al Qaeda is a transnational organization with operational cells in multiple countries. Any conflict arising out of such state and group will take on a transnational character. There are limits to when the application of IHL starts and ends in such scenarios.

The Geneva Convention did not, at the time of its inception, envision such type of conflict. The convention did attempt to expand the scope of article with its interpretation which tentatively suggests only to conflicts within territory of one state. In this interpretation, the question of not including a situation of an international character, with transnational dimensions is a limitation which is not addressed by the article. The article was envisaged only keeping in mind conflicts that were truly internal and covers only cases of “armed conflict not of an international character, occurring in the territory of one of the High Contracting Parties.” The interpretation disallows for the law to apply in covering conflicts between a state and a transnational armed group or an internal armed conflict that transcends over international borders to other states. The wording of the provision makes it clear it only applies in situation where the treaty has a legal jurisdictional nexus with treaty by wording it “territory of one of the High Contracting Parties.”

5. Internationalised Non-International Armed Conflict

Contemporary conflicts indicate the transition from a conflict from international to non-international as it becomes common for a transnational body or outside state to intervene in a non-international armed conflict, often triggering a range of legal perplexities. Instances where a legitimate state intervenes in repression of an insurgency, the armed conflict preserves its nature of conflict which remains to be within the realms of state and is therefore still non-international. Another instance where the same conflict would internationalize the conflict would be when an outside state fights against a rebel movement, with the help of the government state.

For example the armed conflict in Afghanistan was probably a “non-international” armed conflict between the Taliban and North Alliance troops until the U.S. forces intervened, at which point the conflict then became international. When the Taliban gave up control of the government, then the situation must have reverted to a non-international armed conflict, because the US forces were aligned with the newly installed government of Afghanistan. The involvement of another state, hence internationalizes the conflict. Hence, when an international conflict becomes non-international, would that automatically disable the application of IHL is a legal proposition the convention fails to address, leading to widespread legal impunity and evasion.

6. The broader conceptual clash between Human rights law and Humanitarian Law

International Humanitarian law has set a foundation for countries in armed conflict and regulated war behaviour to a large extent, it has still not been able to account for various acts jus in bello or jus ad bellum, the two separate branches, IHL has been successful in both skewing and limiting the choice of methods and means of injuring enemies in an international armed conflict, as well as protect the rights of the victims and innocents stranded in wars. IHL has been based on the tenets of proportionality, humanity, immunity of non-combatants and civil population from the overall effects of war, as what The Hague Law intended. IHL has set a set of rules and framework as to how the wars are fought (measures and instruments of war), the distinction between combatants and non-combatants and approaches to minimize civilians involved in the effects of wars. It also lays down what kind of attacks are permissible, and not even allow them in certain circumstances. This school of though was henceforth overtaken by the Geneva-based conventions and customs and both these two systems of law are intertwined into a single convoluted, complex legal system, an amalgamation of both of these have led to Additional Protocols of 1977.

However, the major dilemma that International Humanitarian Law faces is that it does not work in consonance of keeping human rights exclusively in mind, the very fact that IHL is applied in times of armed conflict, where human rights are applied in times of peace, create this dichotomy and compartmentalization where both working with another becomes difficult. This distinction however is further discussed in the International Court in the Nuclear Weapons Case upholding that basic human political rights do no not cease in times of war (coming under the purview of lex generalis), however the respect for the right to life will not be a provision. It further explained in cases where there is arbitrary deprivation of life, lex specialis applies i.e. the law which governs war and conduct of hostilities. If further rejected the supposed violation of Article 6 of International Covenant on Civil and Political rights, 1966 observed that the terms of the covenant by and large do not decide violation of loss of life, but rather the law in force applicable in armed conflict. Even though human rights afford protection, but IHL provides an entire layout of how war has to be fought, and to implement human rights becomes more imperative so as to avoid the innocents to face the catastrophe of war. Another major issue that IHL faces is its issue of accountability as it only affixes responsibility of human rights violations on states and not individuals. Doing that reduces the efficacy and functioning of guaranteeing human rights, making all attempts to institutionalize human rights in vain.

7. The Problems with Judicial Enforcement

International Criminal Court (ICC) is doubtlessly the most significant international effort to ensure the effective enforcement of Humanitarian Law. Prior to the creation of an international judicial court system, there were anomalies in the way national criminal justice systems worked, which proved difficulty in affixing responsibility and accountability. It was only until international tribunals, that there was a platform for multiple International Armed conflicts to be addressed until the purview of International law. This was envisaged to ensure impunity for IHL violations didn’t prevail and there was a permanency in an institution, unbiased and apolitical and a sense of a universal reach over the offences that violate IHL. This universal consensus comes from the implication that every State party would have to compulsorily succumb and be tried by these laws, would fulfil the peaceful approaches by international diplomacy and relations, and providing a deterrence to future violations.

8. Case Study 2

In spite of the universal and unanimous appeal that ICC has generated in its ability to execute enforcement, there have been limitations of the ICC in fulfilling in their objectives. The present case of the issuing of arrest warrants for the Sudanese President Omar Al-Bashir, resulted in the African Union condemning the ICC. This was due to two reasons being; firstly, it was the first time a State Head was prosecuted for the first time and secondly, it was the first time the African Union showed its utter dismay and urged the Security Council to suspend the petition, stating that Prosecutor’s goal of prosecuting a current of State undermines the efforts to peacefully achieve a solution locally, leading to further international resistance and criticism. Considering the fact that Security Council can veto on cases such as this, albeit the fact that the UN body is politically influenced, the African Union’s response for dismissing the petition for 12 months under the Roman Statute under ICC, is a clear leeway for further bias and unilateral action, contradictory to what IHL envisaged. The aforementioned example clearly show the reality of how even though ICC was designed to be free from any pressure, is actually influenced politically by such unfair arrangements. African Union’s appeal to UN Security posed a threat to the international law by regional politics; leading to deviation from the universal system, weakening the system overall and giving rise to conflicts among different groups. ICC has conceded to the fact that it will not cover every dispute, and since states have been reluctant to act upon their own, international efforts of IHL remains underdeveloped and unexplored.

However, this is contrasted by the efficacy of regional arrangements that provide successful and practical solutions where national and universal level enforcement fails to achieve its objective. Tending to regional strategies and approaches fulfil the overall objective of universal system through practical solutions, ensuring judicious use of resources and addressing normative concerns in dealing with IHL grey areas, hence regional arrangements would rather provide an overall bridge of communication between the local and the global, and hence offers a good potential for supporting the effectiveness of IHL.

9. The problem with regulation of humanitarian assistance in Armed Conflicts

The substantive legal provisions might have a challenge of their own, in application of laws but the laws are progressively changing keeping up with times, especially in particular for new operational realities as they arise. However, the main problem of area is not the lack of laws or rules, but rather the lack of respect and compliance with such laws. While international laws are becoming more detailed covering various aspects of conflict, the main issue arises out of compliance and respect of such norms. If norms have no compliance, then most laws, however noble, cease to hold any importance. As international law is becoming more specialized and detailed, there exists to focus equally well on enforcement mechanisms, for monitoring and evaluating compliance with such norms. The critical step to compliance and accountability will strengthen the rule of international law. An illustration of judicial enforcement mechanisms should include a variety of legal institutions such as courts, tribunals and other judicial bodies. With the development of ICC and other international tribunals located in several states, the gap between rule and enforcement should be reduced,as well as engaging NGOs, transnational organizations and other sub judicial bodies appointed by the same, to tackle these enforcement gaps on a regional level, which includes protection powers, ICR’s centers on conflict areas et all.

Three compliance mechanisms are envisaged in the Geneva Conventions and Additional Protocol I. Firstly, the Protecting powers system obliges each party to the conflict to designate a neutral state, to safeguard humanitarian interests, and therefore to monitor compliance with IHL. However, in actual practice this has been rarely used with the last instance in the Second World War. Similarly, the request to formal enquiry procedure, which enables an enquiry to be made into an alleged violation, at the request of the party to conflict, which again has hardly been used by the parties and none have been able to actually launch the said procedure. Even the last resort which the International Humanitarian Fact-Finding Commission, comes with its own flaws in implementation, because the commission can only enquire if the parties to the conflict are states, and when they have consented to a formal declaration allowing the commission to exercise the discretion on the same, which makes the entire commission defunct, since states would never do that. Unlike several areas of international law, compliance mechanisms are the least productive legal instruments for enforcement and procedures to ensure and check violations.

Humanitarian assistance is a right of the civilian population and is guaranteed both under IHL and IHRL. The right to relief is something which is inviolable, and much from that basis is derived the legal ground from. Almost all states have an obligation to right to life of all the individuals subject to their jurisdiction; this implies that States must abstain from violating this principled right and make sure such rights, by all necessary means, are never abused. The duty to take a positive step to ensure the livelihood of all, especially in times of conflict, means that they must provide all essential goods and services integral to survival, and in times they are unable to do so, they must allow harmless third parties to provide the same. The inseparable link between humanitarian assistance (as a failure of the state to do so) and right to life translates to the fact that parties to the conflict in this respect have the right to relief by third parties on all victims.

There are a plethora of organizations and committees that provide humanitarian assistance in times of need; however, failure of IHL and international human rights law to facilitate Humanitarian organizations has set up a huge setback to victims and innocents. Evidently, most of relief supplies and funds are given into the wrong hands and sometimes goes as far as to be used by belligerents as a weapon of war. As a result of failure to prevent violations, relief supplies are sent, and even they are obstructed from reaching the intended people prolonging their suffering all the more. There arises a need for enforcement and implementation mechanisms to ensure compliance with obligations that stems from the right to humanitarian assistance, offer and provision of aid, with or without the consent of the parties to a conflict and the conditional requirements on which assistance is accorded under international law.

Singular use of IHL creates further gaps in implementation and regulation, which can only be filled by IHRL. The development of IHRL can facilitate and grow the enforcement of various normative principles that customary IHL seeks to provide, as well as non-state parties to conflict implies that they too, comply with IHRL when it comes to non-derogable rights. Lastly, the recognition of jus cogens norms can be deduced by an amalgamation of enforcing both IHL and IHRL together can fill implementation gaps. For instance, in cases where IHL cannot enforce its assistance operations on neutral state parties, IHRL can offer its assistance as it is accorded the right to do so, hence extending the length to which assistance can be provided.

10. Summary:

IHL consists of a plethora of legal provisions and judicial bodies that comprehensively tackle the problems of IHL, but there is a need for proper judicial enforcement and timely legal reforms to ensure that IHL works in tandem with time, considering the operational areas of law continue to keep evolving, with new kinds of war and technology. There needs a legal change both substantively and procedurally to ensure proper justice delivery, especially transitional justice.

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Reference

  • Stoffels, Ruth Abril. “Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps.” Revue Internationale De La Croix-Rouge/International Review of the Red Cross 86, no. 855, 515
  • “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts.” 31st International Conference of the Red Cross and Red Crescent. October 1, 2011.https://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf.
  • International Legal Protection of Human Rights in Armed Conflict. New York and Geneva: United Nations, 2011
  • Waller, Paul. “The Effectiveness of Peacekeeping and Peace Enforcement Operations in Relation to International Humanitarian Law.” In COTIPSO Thesis. Peace Operations Training Institute, 2013
  • Pati, Roza. “THE ICC AND THE CASE OF SUDAN’S OMAR AL BASHIR: IS PLEABARGAINING A VALID OPTION?” http://jilp.law.ucdavis.edu/issues/volume-15-2/Pati PDF.pdf
  • Jinks, Derek. “THE TEMPORAL SCOPE OF APPLICATION OF INTERNATIONAL HUMANITARIAN LAW IN CONTEMPORARY CONFLICTS.” Accessed March 16, 2015. http://www.hpcrresearch.org/sites/default/files/publications/Session3.pdf