INTERNATIONAL HUMANATERIAN LAW AS IT AFFECTS CONFLICS: APPLICATION, PRACTICE AND

IMPLIMENTATION

BY

UMAR YUSUFNDA/PGS/FASS/M/1512/13

NIGERIAN DEFENCE ACADEMY POST GRADUATE SCHOOL-DEPARTMENT OF HISTORY AND

INTERNATIONAL STUDIES

COURSE CODE: HIS 718INTERNATIONAL HUMANATERIAN LAW AS IT

AFFECTS CONFLICS

LECTURER: DR. C.C. OSAKWE

JUNE 2014

ABSTRACT

This Paper on International humanitarian law as it affects conflicts had

attempted to trace the origin of the law, its practice and its implementations. In the

end, the paper concludes that this subject is one of the most volatile issues in the

globe because of the changing nature of the human activities that necessitate it.

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. The irony of this law is that it is not a law but rather treaties or

conventions added to the respective customary rules of member nation or nations

that agree to be signatories to the agreements. The researcher however concludes

that those who transfer weapons to combatants should be part responsible for how

they use them. Similarly, also it is noticed that certain rulers are now refusing to

give some Prisoners of War (POW) the protection they deserve for one reason or

the other when that should not be the case. A POW is a POW, regardless of the

reason why he is fighting before capture. All POWs should be regarded and treated

as POWs according to the UN agreements that protect them.

Introduction

International Humanitarian Laws and International Humanitarian Law as it

affects conflicts, is a body of agreements regarded as laws and promoted by a

nongovernmental organization (the International Committee of Red Cross and

Crescent) with the support of some important nations of the world and the United

Nations. It is designed to protect non combatants in conflict areas. It is true that

International humanitarian law is rooted in the rules of ancient civilizations and

religions because warfare has always been subject to certain principles and

customs, the universal codification of international humanitarian law never the less

began in the nineteenth century.

Since then, States have agreed to a series of practical rules, based on the

bitter experience of modern warfare. These rules strike a careful balance between

humanitarian concerns and the military requirements of States and as the

international community has grown, an increasing number of States have

contributed to the development of those rules and therefore today international

humanitarian law forms a universal body of laws that covers two areas:

i. The protection of those who are not taking part in war, or they are no

longer in action due to either incapacitation or they surrender.

ii. Restrictions on the means of warfare – in particular weapons– and the

methods of warfare, such as military tactics.

Conceptualization

Humanity has a unique capability for development of culture in the sense of

conscious thinking and planning, transmission of skills and systems of social

relationships, and creative modification of the environment because no nation

lives as an island and war is an international affair the laws of war are supposed to

be international laws. On the other hand according to American Encarta

International Laws are;

… principles, rules, and standards that govern nations and other participants in international affairs in their relations with one another. It is the law of the international community that mostly consists of long-standing customs, provisions agreed to in treaties, and generally accepted principles of law recognized by nations even though some of these laws are created by the rulings of international courts and organizations.

There purposes include resolution of problems of a regional or global scope (such as environmental pollution or global warming), regulation of areas outside the control of any one nation (such as outer space or the high seas), and adoption of common rules for multinational activities (such as air transport or postal service) and in the case of International humanitarian laws, the

mitigation of the evils of conflicts. International law also aims to maintain peaceful international relations when possible and resolve international tensions peacefully when they develop, to prevent needless suffering during wars, and to improve the human condition during peacetime.

Enforcement of international law is often difficult because nations are sovereign powers that may put their own interests ahead of those of the international community. In addition, the mechanisms of enforcement are still new. Enforcement may be effectively achieved, however, through the actions of individual nations, agencies of international organizations such as the United Nations (UN), and international courts. The United Nations Security Council for instance can authorize economic sanctions, diplomatic sanctions, or military force to maintain or restore international peace and security.

International law began as a system governing the relations among sovereign states, and states have always been the primary legal entities affected by international law. The emergence of international human rights law and, more recently, international humanitarian laws as it affects conflicts reflects the fact that individuals today are direct subjects

of international law in certain respects [1].

War is a constant human phenomenon from time long forgotten as such

humanity had begun to sort ways to mitigate its cruelty because at best war is not

humane. To do that, man had realized that he can only do so by enacting laws that

stipulate punishments not by mere moral teachings because in history, there were

many instances in which moral codes were used to give war a human face but it

does not serve that purpose. For instance, during the life time of Prophet

Muhammad (SAW), he usually gave his followers moral directives whenever they

were to embark on any war. Such moral instructions include: they should not kill

the old, the young and women. Because such moral teachings were not laws that

attracted punishment when breached, the instructions were not as effective as they

should have been. Thus the wisdom of using laws as the means of mitigating

violence associated with wars.

The choice of law over moral teaching is to have a case where otherwise it

would not have existed if wrong is done, as the Greeks use to say ‘Nullum crimen,

nulla poena sine praevia lege poenali’ meaning; ‘There exists no crime and no

punishment without a pre existing penal law appertaining’. Strictly speaking

however, International Humanitarian Laws are not real laws but protocols,

conventions and agreements that derived its origin from European cultural

background and environment. That is why in other conflict spots of the world they

hardly respect these protocols called IHL.

International Humanitarian Laws however have derived their legal stand

from the Geneva Conventions that resulted from series of international agreements

that created and developed the laws that can protect the wounded combatants and

those who assist them. The laws also protect prisoners of war, as well as civilians

or non combatants trapped in the conflict zones. It also protects uniformed men but

whose duties confined them to non combat assignments. These include the

Chaplains, Imams and Medical personnel.

Origin

As early as the dawn of the 16th century, Grotius's first published work on

international law, Mare Liberum (The Free Sea) in 1609, had began to challenged

the right of any nation to claim any part of the open sea as exclusively its own.

Such a claim, Grotius argued, was against natural law and the basic law of

humanity. He took the same line of argument in his De Jure Belli ac Pacis (On the

Law of War and Peace, 1625): that war violates natural law, which applies to the

conduct of nations and of individuals. His contention was that war can be

condoned only if it is for a righteous cause and conciliation has failed, he therefore

called for humanitarian limits on such warfare [2].

Another reason for the actualization of the law was to be the witnessing of

typical war scene, when in 1859 a traveling Swiss businessman, Henry Dunant,

came upon the gory aftermath of the battle of Solferino—one of several clashes

between Austrian and French armies that eventually resulted in the formation of

the modern Italian nation. It was typical of 19th-century warfare. After the battle,

hordes of wounded lay amid the dead on the field (there were nearly 40,000

casualties in all), largely untended, tormented by sun and flies, lacking water, food,

and bandages. He was horrified with the sight which made him to organized

volunteers from nearby villages to come to their aid.

Haunted by that experience, on returning to Geneva he wrote Memory of

Solferino in 1862, which received wide support for its call for advance preparation

for battle casualties and for a neutral organization of civilian volunteers to treat and

care for them. Dunant's idea—that the butchery of the battlefield could be limited

by humanitarian rules—was truly a radical concept in an age when militarism had

become the principal basis of relations between European governments and that his

suggestion that combatants should respect the neutrality of medical teams giving

aid and comfort to their opponents' troops on the battlefield was no less than

revolutionary.

What the Doctor actually saw was not anything new in the history of

warfare. For instance, in ancient times prisoners of war were usually treated

without mercy or simply sold up as slaves. Among the Greeks, for example, it was

a common practice to put to death the whole adult male population of a conquered

state. The ancient Britons for example usually killed their prisoners in a barbarous

fashion. When in 1258 General Hulagu, entered Bagdad it is claimed, he first had

the caliph executed along with large numbers of Muslim clerics and then he

ordered the execution of all the men, women and children living in city totaling

about a million. The Muslim Ottomans also were said to have executed about

30,000 Christian prisoners during the War of Candia (1667-1668). In Western

Europe, however, as chivalry spread in late medieval times, generosity to a fallen

foe asserted itself and the practice of sparing and ransoming prisoners was

introduced.

However with the coming of the IHL, the Convention that set the first rules

had required the humanitarian treatment of wounded soldiers at the same time

called for official national societies to solely authorize to use the Red Cross

symbol. The Convention established as its central monitoring body the

International Committee for the Relief of Military Wounded, which in 1876

became the ICRC. (That was the year also when Turkey, rejecting the Christian

implications of the cross, substituted the Red Crescent as the symbol of its national

society. The ICRC was not religiously grounded, but the Swiss flag's Christian

reference was inescapable. Other Islamic nations have followed Turkey's lead, and

the crescent holds the same status as the cross under the amended Geneva

Conventions) [3]. Another land mark on IHL happens in 1949 when the Geneva

Convention of 1945 gave Prisoners of War a special protection.

The Hague Conferences, the Geneva Convention in 1906, and the more

detailed convention of 1929 provided international rules for the humane treatment

of prisoners. A prisoner of war may not be treated as a criminal but may be

employed in nonmilitary paid work. The prisoner has a right to adequate food,

clothing, and quarters and to the transmission of letters and parcels. A member of

the armed forces is bound to supply name, rank, and serial number but cannot

legally be compelled to give further information to the enemy. The provisions of

the Geneva Convention of 1906 and 1929 were largely disregarded by totalitarian

regimes, particularly those of Germany, Japan and USSR during World War II

(1939-1945).

Then following the experiences of World War II, another Geneva

Convention was convened in August 1949 to deal with the treatment of prisoners

of war. The rules that were put forth were binding on most of the countries of the

world, but these rules have not always been strictly observed [4].

International Humanitarian Law as it affects conflicts

International humanitarian law and international human rights law are two

distinct but complementary bodies of law both of which seek to protect the

individual from arbitrary action and abuse... the laws for the most part applies in

situations of armed conflict… in times of armed conflict international human right

law and international humanitarian law both apply in complementary manner.

These laws are designed to protect those who do not take part in a fighting, such as

civilians, medical and religious military personnel. It also protects those who have

ceased to take part in active war, such as the wounded, the shipwrecked, sick

combatants, and prisoners of war. These categories of person are entitled to respect

for their lives and for their physical and mental integrity. They also enjoy legal

guarantees. They must be protected and treated humanely in all circumstances,

with no adverse distinction. More specifically, it is forbidden to kill or wound an

enemy who surrenders or is unable to fight; the sick and wounded must be

collected and cared for by the party in whose power they find themselves.

Medical personnel, supplies, hospitals and ambulances must all be

protected. There are also detailed rules governing the conditions of detention for

prisoners of war and the way in which civilians are to be treated when under the

authority of an enemy power. These include the provision of food, shelter and

medical care, and the right to exchange messages with their families.

The ICRC, with the support of the International Red Cross and Red Crescent

Movement, constantly urges governments to adapt international humanitarian law

(IHL) to changing circumstances, in particular to modern developments in the

means and methods of warfare, so as to provide more effective protection and

assistance for the victims of armed conflict. Today, the four Geneva Conventions

of 12 August 1949, which protect wounded, sick and shipwrecked members of the

armed forces, prisoners of war and civilians during armed conflict, have been

universally ratified and are binding on all States.

Approximately two-thirds of States are bound by the Additional Protocols of

1977, which protect the victims of international and non-international armed

conflicts, particularly the civilian population, from the effects of hostilities. The

international community – through the Geneva Conventions and Additional

Protocol I – gives the ICRC an important role to play in the event of international

armed conflict, which includes visiting prisoners of war and civilian internees [5].

The laws had sets out a number of clearly recognizable symbols which can be used

to identify protected people, places and objects. The main emblems are the Red

Cross, the Red Crescent and the symbols identifying cultural property and civil

defense facilities [6].

The second item relating to International Humanitarian Law is the issue of

weapons and tactics. International humanitarian law prohibits all means and

methods of warfare which:

a. Fail to discriminate between those taking part in the fighting and those, such

as civilians, who are not, the purpose being to protect the civilian

population, individual civilians and civilian property.

b. Cause superfluous injury or unnecessary suffering.

c. Cause severe or long-term damage to the environment.

This Humanitarian law has therefore banned the use of many weapons,

including exploding bullets, chemical and biological weapons, blinding laser

weapons and anti-personnel mines.

Application of the law

Because there are countless examples of violation of international humanitarian

law and an increasing number of the victims of war are civilians, there are also

corresponding important cases where international humanitarian law has made a

difference in protecting civilians, prisoners, the sick and the wounded, and in

restricting the use of barbaric weapons. Given that this body of law applies during

times of extreme violence, implementing the law will always be a matter of great

difficulty. That said, striving for effective compliance remains as urgent as ever.

For instance there are cases of the trials of persons charged with criminal violation

of the laws and customs of war and related principles of international law since the

end of the Second World War. The first war crimes trials in modern times were

held after World War II (1939-1945) by the victorious Allied nations to prosecute

German and Japanese war criminals.

The American e-encyclopedia, the Encarta, commenting on the incident had

recorded the following on the issue;

When World War II ended in 1945 … from 5.6 million to 5.9 million Jews had been exterminated. Some 1.5 million of the victims were children.

After the war the Allies established an International Military Tribunal at Nurnberg, Germany, to prosecute the surviving Nazi leaders for war crimes and crimes against humanity. At the most important of the war crimes trials, held in 1945 and 1946, 22 top leaders of Nazi Germany were found guilty, and of these 12 were sentenced to death. In addition, military and civilian tribunals in many countries conducted hundreds of trials... In Germany alone, close to 90,000 war crimes cases were opened. Later, in 1948, a United Nations (UN) resolution established crimes against humanity as a crime under international law with no limitation period for the prosecution of those

accused of such crimes. Based on this resolution, France has convicted a number of former Nazis and the United States has revoked the citizenship of several Nazi collaborators who had immigrated there [7].

Another celebrated case similar to the above trials and connected to it but

handled by a single nation was that of Adolf Eichmann, who during Hitler’s reign

was entrusted by the leaders of Nazi Germany with responsibility for carrying out

and coordinating the “final solution”—the murder of almost 6 million Jews during

World War II (1939-1945). Under Eichmann’s direction, Jews from all over

German-occupied Europe were sent to concentration camps to be killed. In 1944

Eichmann was dispatched to Hungary to supervise the destruction of the Hungarian

Jews. Eichmann vanished after the war, but in 1960 Israeli agents found him in

Argentina, abducted him, and took him to Israel. An Israeli court convicted

Eichmann of crimes against humanity, and he was hanged in 1962 [8].

Similarly in 1993 and 1994 the United Nations (UN) established war crimes

tribunals to prosecute those who committed crimes during the civil wars in the

former Yugoslavia and in Rwanda. In 2002 the UN and the government of Sierra

Leone established a jointly administered war crimes tribunal to prosecute atrocities

committed during Sierra Leone’s civil war and a similar court has been proposed to

prosecute war crimes committed in Cambodia during the 1970s.

In July 1998 UN delegates approved a statute creating a permanent

International Criminal Court (ICC) to try people accused of genocide (systematic

extermination of a group), war crimes, crimes against humanity, and crimes of

aggression. It was designed to replace ad hoc tribunals of limited jurisdiction, such

as those created to address the conflicts in the former Yugoslavia and in Rwanda.

The ICC, with headquarters in The Hague, The Netherlands, officially came into

being on July 1, 2002. Thus in 2006 Taylor was arrested and faced an international

tribunal on 11 counts of war crimes for his role in aiding the Sierra Leone rebels.

He went on trial at The Hague in June 2007.

The Yugoslavian case was that, Slobodan Milosevic (1941-2006), president

of the republic of Serbia from 1989 to 1997 and president of the Federal Republic

of Yugoslavia was extradited in 2001 to the United Nations (UN) war crimes

tribunal at The Hague to face trial on charges of war crimes, crimes against

humanity, and genocide in Bosnia, Croatia, and Kosovo during the wars of

Yugoslav succession in the 1990s. He died in prison before the trial could be

completed [9].

However these war crimes might have been punished because the

governments under which the crimes were committed are no longer in power. It is

noted that crimes committed by those in power or under victor nations were hardly

brought to trails and if the trail is ever held, the justice expected may never

materialized. For instance during the Second World War, in 1940s, when Germany

and the USSR partitioned Poland, the issue of the thousands of captured Polish

army officers murdered by Soviet security services was never revisited even after

the war because USSR was among the victor nations not even after mass grave

containing many of the bodies was discovered later in the Katyn Forest near

Smolensk, Russia [10]. The My Lai Massacre, by the US soldiers during the

Vietnam War, in March 1968 is another example. Recently the Kenyan 2007-8

post election violence cases had to be dropped due to some technicalities. The

Guardian News Paper reported that:

As Judges of International Criminal Court (ICC) mulled dropping the high-profile trials of Kenyan President Uhuru Kenyatta, his defence team said yesterday his crimes against humanity case before the court ‘’has collapsed.’’

‘’The prosecution has realized that its case has collapsed,’’ lawyer Steven Kay told judges in the Hague, where Kenyata faces charges for his role in the deadly 2007-8 post poll violence that rocked the east African country.

The ICC last month postponed Kenyatta’s trial after prosecutors said they no longer had enough evidence

to put him in the dock. Kenya’s top politician was supposed to go on trial yesterday, but instead judges were listening to arguments on whether to withdraw the charges.

Kenyatta, 52, is facing five counts of crime against humanity allegedly committed under his direction in the aftermath of the disputed election in which prosecutors say more than 1,100 people died.

In an apparent last bid to keep the case alive, prosecutors now want judges to rule that Nairobi has failed to cooperate with their investigation especially in their request for financial statements which they say could prove Kenyatta’s role in funding the violence [11].

Yet violations of these laws are still being committed as if the law does not

exist. Even on the 17/6/2014, there was a report of the executions of the Prisoners

of Wars (POWs) by the Syrian ICS rebels [12]. Again this brings us to another

issue, who takes responsibility of rebels action apart from the rebels themselves? It

is true that rebels are responsible to all their actions but those who gives them

weapons should also be hold part responsible to their actions.

Implementation of the law

More and more measures are now being taken to ensure respect for

international humanitarian law. The General Assembly of the United Nations

declared it as a common standard of achievement for all peoples and all nations, to

the end that every individual and every organ of society, keeping this Declaration

constantly in mind, shall strive by teaching and education to promote respect for

these rights and freedoms and by progressive measures, national and international,

to secure their universal and effective recognition and observance, both among the

peoples of Member States themselves and among the peoples of territories under

their jurisdiction [13]. For instance, States are taking it as obligation to teach these

rules to their armed forces and the general public. They are also preventing

violations and punishing culprit’s if/when violation of the rules occurs. In

particular, they are enacting laws to punish the most serious violations of the

Geneva Conventions and Additional Protocols, which are regarded as war crime.

Another issue is the weapons to be used, when a State for example transfers

military weapons or equipment, it is providing the recipient with the means to

engage in armed conflict – the conduct of which is regulated by international

humanitarian law (IHL). Under Article 1 common to the Geneva Conventions of

1949, States have an obligation to “respect and ensure respect” for international

humanitarian law. To ensure that violations of humanitarian law are not facilitated

by unregulated access to arms and ammunition, arms transfer decisions should

include a consideration of whether the recipient is likely to respect this law [14].

When referring therefore to the practical application of international

humanitarian law criteria, a strict international humanitarian law criterion, on

paper, will not effectively prevent weapons from falling into the hands of those

likely to use them to commit violations unless it is applied in a rigorous and

consistent manner. To assist export licensing authorities and other government

officials involved in arms transfer decision-making, it would be useful to develop

regulations or guidelines outlining the various factors that should be taken into

account when assessing the risk of weapons transfers being used to violate

humanitarian law. This would also contribute to the development of more

systematic and objective approaches to such assessments [15].

Conclusions

IHL and IHL during conflicts are now being practiced and implemented in

various part of the world. However, there are certain rulers of the world that are

now escaping from such guilt simply because they are rulers of powerful nations or

are major financers of the UN. A typical example is that of President Bush’s

refusal to recognize prisoners at Guantánamo in Cuba, as POW by housing them at

an interim facility known as Camp X-Ray in January 2002. The Bush

administration determined that the detainees at Guantánamo would be classified as

“enemy combatants” and would not be accorded the status of prisoners of war

under the Geneva Conventions.

Another issue the researcher felt it should be included as part of the

implementation schedule is that those who sell weapons or transfer it should be

made part responsible for its use. Thus ammunition manufacturers and dealers, as

well as governments that support combatants and especially those dealing with

nongovernmental combatants like freedom fighters, revolutionaries and various

insurgent movements should be to include as part of the protocols for weapon

transfer the education of the insurgents about the International humanitarian laws

as regards conflict and were violation takes place they should be part responsible.

Also regardless of what any nation might considered as the “casus belli” for

a particular war, IHL are there to ensure that brutality, meaningless massacre,

unwarranted destruction of lives and property are reduced to the barest. These laws

were enacted to give war a human face- a feat which has received accolade from

nations, the world over. Although the implementation of the IHLs are not yet

universal, the impact, thus far is far reaching and overwhelming.

NOTES

1. Shelton, Dinah. "International Law." Microsoft® Encarta 2009 [DVD].

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3. "Red Cross." Microsoft® Encarta® 2009 [DVD]. Redmond, WA: Microsoft

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4. "Prisoners of War (POWs)." Microsoft® Encarta® 2009 [DVD]. Redmond,

WA: Microsoft Corporation, 2008.

5. 2012-2013 report of the ICRC on Implementing IHL Treaties by the

American Participating American States.

6. What is "protection?” Advisory service on international Humanitarian Law

ICRC 2007

7. Bankier, David. "Holocaust." Microsoft® Encarta® 2009 [DVD]. Redmond,

WA: Microsoft Corporation, 2008.

8. "Adolf Eichmann." Microsoft® Encarta® 2009 [DVD]. Redmond, WA:

Microsoft Corporation, 2008.

9. Rusinow, Dennison. "Slobodan Milošević." Microsoft® Encarta® 2009

[DVD]. Redmond, WA: Microsoft Corporation, 2008.

10. Sanford, George. "Poland." Microsoft® Encarta® 2009 [DVD]. Redmond,

WA: Microsoft Corporation, 2008.

11. The Guardian News Paper, Thursday, Febuary 2014.

12. www.voanews.com retrieved on the 17th of June, 2014.

13. Chukwuma Osakwe and Lawrence Okechukwu Udagbala, Human Right and

International Humanitarian Law as it affects Conflicts Since 1945: A

Apprisal

14. What is International Humanitarian Law? Advisory service on international

Humanitarian Law ICRC 2002

15. 28th International Conference of the Red Cross and Red Crescent, Agenda

for Humanitarian Action, Final Goal 2.3 (adopted by consensus on 6

December 2003).