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Post No.: 0612ihl


Furrywisepuppy says:


I recently became deeply intrigued by International Humanitarian Law (IHL). The following series of posts centred on this area of international law will present an overview to hopefully whet your appetite on the subject.


But firstly a little heads-up – there are many details where different scholars and States/countries present different opinions or interpretations of the law hence they’re still being debated, new types of conflict scenarios may expose (disputed) gaps in the law and – like any area of law – these laws evolved gradually into existence and will likely continue to refine and evolve. Bear in mind that different States will have signed and ratified different treaties too hence may have agreed to bind themselves to different rules and reservations…


International Humanitarian Law concerns the international laws that aim to regulate armed conflicts, such as who and what can be lawfully targeted and the rules of detention when combatants are in the hands of the enemy. It prohibits certain acts but not others during situations of armed conflict. IHL is sometimes referred to as the ‘law of war’, jus in bello or the ‘law of armed conflict’ (LOAC) – but the emphasis on the humanitarian side is intended to stress that its fundamental purpose is protection and to place restraints on the conduct of warfare in order to reduce the effects of hostilities.


International Human Rights Law (IHRL) generally protects life and liberty far more than International Humanitarian Law, but conflicts happen thus IHL attempts to balance humanitarian considerations and minimising unnecessary suffering with the realities of military necessity. One objective of IHRL is to prevent warfare, but the reality is that armed conflicts do and will continue to happen hence it’s better to set some laws of war that kick in under such scenarios rather than say that law and order completely breaks down during such times.


Well war doesn’t actually act as a ground for the termination of human rights treaties. In most cases, your IHRL rights protect you more than your IHL rights. It’s just that IHRL wasn’t designed to regulate armed conflicts thus contains no rules governing the means and methods of warfare e.g. distinguishing civilians from combatants and other military targets; never mind specifying when civilians can be lawfully attacked or when civilian casualties are a lawful consequence of military operations. IHRL is deemed to apply at all times, and constitutes the lex generalis (more general law) whereas IHL constitutes the lex specialis (more specific law) that is triggered by the occurrence of an armed conflict i.e. whenever IHRL and IHL diverge, IHL is deemed to prevail during armed conflicts since it was conceived specifically to deal with them. This means that some IHRL obligations can be derogated from (exempted or suspended) during times of crisis, under strict conditions. However, certain rights, like the right to life and freedom from torture, are considered jus cogens or peremptory norms (rights that can never be derogated from under any circumstances, including via consent or agreement between States).


A concern raised by the idea of regulating war is that it risks legitimising war. If war were simply outlawed then the regulation of its conduct should cease to be relevant – there’d be no ‘right way’ to conduct something that was outright wrong. But there’s idealism versus realism – simply having laws that say ‘don’t fight’ aren’t going to work.


There’s a general prohibition on the use of force, but there’s a right to defend oneself. Non-violent interventions may fail to get a violent party to cease their violence upon others. Even international institutions like the United Nations (UN) may fail to de-escalate matters after being referred to. Yet even if one didn’t start a fight, that doesn’t mean one can do whatever one wants in the name of retaliation or justice. (It’s like ordinary domestic criminals behave illegally yet the police need to be regulated in how they fight crime.)


International Humanitarian Law is essential to ensure that the military remains subject to the law, and because people forget the lessons from previous wars. These laws can help during peacetime too because they regulate what weapons can be manufactured before any conflict that may exploit them arises – and States are more likely to cooperate during peacetime. IHL is necessary because of the existence of weapons of mass destruction, irregular warfare, threats of cyberwars nowadays, potential wars in space, and autonomous weapons systems and other new technologies. Private military companies (PMCs) operating in theatres of war have raised new problems and concerns too (the Montreux Document sets out ‘good practices’, although it’s non-legal and non-binding).


It seems paradoxical to think that States will want to obey any rules when their focus is to defeat their enemy – but the fact that most States have agreed to at least some IHL treaties indicates that there’s an intention to. This is a globally-interconnected world politically and economically, thus a State’s reputation on the international stage matters – albeit critics will argue that agreeing to certain standards (whether regarding IHL, IHRL, environmental targets or any other treaties) and meeting them are wholly different things! Indeed, IHL is frequently violated.


Yet it’s also more frequently adhered to. But these incidents don’t make the news because they’re ‘non-events’ – whereas a single violation can have shocking consequences. (It’s like speeding frequently happens but it doesn’t mean adhering to traffic laws isn’t a societal norm.) No law works 100% to deter the crime it’s trying to prevent but that doesn’t mean we should therefore completely scrap them and make their acts legal. And when States are accused of violations, they don’t deny that the law exists but rather contend that they didn’t violate it i.e. they don’t say, “What law?” but instead say something like, “We didn’t break that law” and try to interpret the law in a way that means they didn’t violate it (just like people don’t say, “Racism isn’t wrong” but rather, “I’m not racist.”) Hence States do accept it as law.


We’ve also got to remember that war isn’t an end in itself – wars are fought in order to achieve other (e.g. political, resource, peace) ends, and we can make sure that a belligerent cannot achieve these ends through excessive means without repercussions from the rest of the international community. If we want to punish individuals for war crimes then we’ve got to make clear what laws are being broken. Belligerents should have an interest in protecting their own soldiers and civilians too. And post-war reconciliations are easier to achieve if the hostilities weren’t unrestrained. Woof.


By definition, ‘wars’ need to be formally declared through a declaration of war, but most ‘armed conflicts’ or extended ‘military engagements’ since WWII aren’t like that anymore. For the purpose of IHL though, this distinction doesn’t matter – modern IHL applies to whatever one wants to call any type of armed violence between or within States that involve State armed forces and/or non-state armed groups.


What’s often referred to as ‘Geneva Law’ concerns the regulation of the treatments of individuals involved or caught up in armed conflict. What’s often referred to as ‘Hague Law’ concerns the regulation of the actual conduct of hostilities. Other additional conventions cover specific prohibitions e.g. certain weapons like chemical weapons, landmines, booby traps or flamethrowers, and the protection of cultural properties.


IHL is implemented and enforced by the International Committee of the Red Cross (ICRC) and by States in the international community themselves. However, the ICRC is a non-judicial organisation hence isn’t designed to sanction IHL violations. Sanctions are dealt via the UN Security Council (UNSC), international criminal courts/tribunals and human rights bodies, as well as via international community disapproval, which could have political and economic consequences for any violating States. Individuals who commit serious IHL violations commit war crimes, and they can be tried in an international criminal court/tribunal.


But a major criticism is that the powerful never seem to get punished – as if ‘might makes right’. Legislation is one thing but the enforcement of it is another, and this depends on the global distribution of power and the interests of the most powerful countries e.g. the USA largely got away with the violations it committed during the 2003 Iraq War. (Whistleblowers, like Army Specialist Manning, got charged for leaking evidence of US IHL violations though!) Meanwhile, smaller (mainly African) countries have felt the full force of the law. The permanent members (P5) of the UNSC (China, France, Russia, UK and USA) have veto power in the UNSC. Furthermore, the selective waging of war following different agendas appears problematic e.g. why was Afghanistan invaded because of the Taliban but not Myanmar despite proven atrocities committed by their military against their own citizens?


Regulating the conduct of war (IHL or jus in bello) doesn’t legitimise the decision of going to war in the first place – this would concern jus ad bellum. (These terms were first mentioned in Post No.: 0407.) IHL rules should be symmetrical – why would one side play by the rules when the other side doesn’t have to, when winning or losing is at stake? That’s why there’s a clear separation between jus ad bellum and jus in bello – whether there’s an unequivocal ‘just belligerent’ (‘good guys’ e.g. who acted in self-defence) and ‘unjust belligerent’ (‘bad guys’ e.g. who started the aggression) or not (and there isn’t always), both/all sides are equally subject to the laws that govern how hostilities are conducted.


Under contemporary jus ad bellum, there’s a general prohibition on the use of force except in situations of self-defence against an armed attack, when the UNSC authorises States to use force in response to ‘any threat to the peace, breach of the peace, or act of aggression’, or when a State gives consent to another State to use force within its territory. This means that the doctrine of ‘pre-emptive self-defence’ against an attack that might arise at some hypothetical future time has no basis in international law (which made the US-led coalition invasion of Iraq in 2003 legally questionable in the first place). Some argue that pre-emptive strikes can confer a military advantage, which is an important notion under jus in bello, and serve a humanitarian aim (i.e. it’s expected to save more civilians in total), which can be an authorised aim in jus ad bellum; but this isn’t a common view. Non-violent means should be attempted first, such as negotiation, retreat or referring to the UN.


Under jus ad bellum, if one State illegally attacks the territory of another, the victim State is entitled to use the force necessary to repel the aggressor from its territory and end the invasion – but nothing more, including any violent and punitive reprisals. The purpose is to safeguard international peace and security. Meanwhile, under IHL or jus in bello, each military operation must conform to rules that govern issues like who or what can be targeted and what kinds of weapons can be used. The purpose is to protect individuals. A use of force may be legal under jus ad bellum but illegal under jus in bello, or vice-versa e.g. a military intervention carried out in self-defence must, as a whole, still be proportionate to its aim, and any individual military operation within the conflict must be proportionate to the military advantage expected to be gained too. They’re separate tests that must be passed separately.


But one question is, if the lawful purpose of a military intervention was a humanitarian one – would destroying a bridge, which would otherwise normally confer a military advantage, contradict this humanitarian objective? If so, why should the side that has a humanitarian objective be handicapped by being restricted in the number of civilian objects it can lawfully target, and thus hand an advantage to an aggressor State?


…There’ll be much more on this subject that hugely affects international politics and relations to come, so I hope you’ll find it as engrossing as I do…




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