International Humanitarian Law

International Humanitarian law sets limits on how the parties may conduct hostilities and protect all persons affected by the conflict. International Humanitarian Law therefore imposes obligations on both sides of the conflict equally though without conferring any legal status on the armed opposition groups involved. These rules of conduct of war are codified in a set of documents known as the Geneva Conventions.[i]
The Geneva Conventions comprise of four treaties and three additional protocols that collectively establish the standards of international law for the humanitarian treatment in war. The Geneva Conventions extensively define the basic rights of wartime prisoners, establish protections for the wounded and sick; and establish protections for the civilians in and around a war-zone. The most important section of the Geneva conventions in current times is the Geneva Conventions Part IV[ii] concerning the protection of civilians in armed conflict. Other relevant sections related to the protection of civilians are the Additional protocol I[iii] and Additional protocol II[iv] to the Geneva Conventions. The Geneva Conventions Part IV[v] and the Additional Protocol I[vi] regulate the rule of law in International Armed conflictswhereas Common Article 3 of the Geneva Conventions Part IV[vii] and Additional Protocol II[viii] establishes the rule of law in a Non-International Armed Conflict. A short introduction of an armed conflict and the distinction between international armed conflict and non-international armed conflicts is addressed below in the subsequent paragraphs.
What is an armed conflict?
In very layman terms, a war or an armed conflict refers to a situation of extreme aggression and use of force by one or both parties to a conflict. It is important to know that armed conflicts can be multidimensional whereby they involve more than 2 parties to a conflict. These parties to the conflict who are engaged in hostilities are termed as belligerents. An armed conflict is often associated with the used of regular or irregular military forces and is characterized by mortality and destruction of infrastructure and institutions. Earlier armed conflicts stemmed from mere political or territorial conflicts and involved the use of armed forces by at least one of the parties to the conflict. However, the contemporary notion of war or armed conflict has radically transformed over the years to encompass interstate and multi-ethic conflicts involving the indiscriminate use of force by armed militia and extremist factions. This has become a recurring phenomenon in the 21st century wherein armed militia, such as the Al Shabab in East Africa and the Islamic State in the Levant region, have seized considerable control of territory and have become involved in armed conflicts with governments.
International armed conflict vs Non-International Armed Conflict


This leads us to an important distinction regarding the nature of armed conflict — an armed conflict can either be international or non-international in nature. International armed conflict refers to a situation of an armed conflict between two or more than two opposing state parties. Non-international armed conflict refers to a situation of violence involving protracted armed confrontations between government forces and one or more organizedarmed groups, or between such groups themselves, arising on the territory of a State. In contrast to an international armed conflict, which opposes the armed forces of States, in a non-international armed conflict at least one of the two opposing sides is a non-state armed group. The ongoing civil wars in the Democratic Republic of Congo and Somalia are examples of non-international armed conflicts. It is nevertheless important to underline that a situation can evolve from one type of armed conflict to another, depending on the facts prevailing at a certain moment. Some international humanitarian law experts argue that the situation in the Syrian Arab Republic has transformed from a non-international armed conflict.
Some Important Principles of International Humanitarian Law
The following are a few guiding principles of International humanitarian law. Please note that IHL is an extensive body of rules and regulations that go way beyond the limited information given below.
1. Principle of Distinction [x]
2. Principle of Proportionality [xi]
3. Principle of Military Necessity [xii]
4. Principle of Neutrality [xiii]
5. Protection of medical and humanitarian aid personnel [xiv]
Principle of distinction:
The basic axiom underlying International Humanitarian Law (IHL) is that even in an armed conflict the only acceptable action is to weaken the military potential of the enemy. Therefore, belligerents in an armed conflict must distinguish between civilians and combatants. The principle states that attacks may only be directed against combatants and attacks must not be directed against civilians. This principle is enshrined in Chapter II of the Additional Protocol I[xv] to the Geneva Conventions on Civilians and Civilian Populations.
Now how do we make a distinction between who is a civilian and who is a combatant? The definition of a civilian and a civilian population is given under article 50 of the Additional Protocol I of the Geneva Conventions.[xvi] However, this rule must be read in conjunction with the prohibition to attack persons recognized to be hors de combat and with the rule that civilians are protected against attack unless and for such time as they take a direct part in hostilities. The term hors the combat means that combatants who have given up their arms and are no longer engaged in hostilities must not be attacked in an armed conflict.
Principle of distinction between civilian and military objects:
Another closely related principle is the principle of distinction between civilian and military objects. This principle states that “Parties to a conflict must at all times distinguish between civilian and military objects. Attacks must not be directed at civilian objects and may only be directed at military objects”.
In layman terms belligerents in an armed conflict cannot target objects that are necessary for the survival of civilian populations. For instance, belligerents cannot destroy civilian homes or civilian property as long as these homes do not offer the belligerents definite military advantage. The only objects that belligerents can target are military objects.
Principle of Proportionality
The principle of proportionality mitigate the potential harm to civilians and civilian objects in an armed conflict by imposing a limit on the intensity of armed attacks against military objects. The principle states that “the incidental loss of civilian life or damage to civilian object, or a combination therefore must be proportional and not excessive in relation to the anticipated military advantage”. The intentional conduct of a disproportionate attack is strictly prohibited and constitutes a violation of International humanitarian law.
It is important to note that principle of proportionality is only applied when an attack is directed against a lawful military object. The principle is not applicable to attacks directed against civilians or civilian objects since any attack against civilians or civilian objects are prohibited under international humanitarian law.
This principle of proportionality in attack is codified in Article 51(5)(b) of Additional Protocol I[xvii] and repeated in Article 57. Even though this rule is not codified in treaty instruments regulating non-international armed conflict (common article 3 of the Geneva Conventions Part IV[xviii] or the Additional Protocol II of 1977[xix]), the International Committee on Red Cross deems this to be a principle of Customary International humanitarian law. This means that the principle of proportionality is applicable in both international and non-international armed conflicts.
Principle of Necessity
Under International Humanitarian law any attacks or action undertaken directed against a military object must be carried out with the intention of gaining a military advantage and the harm caused to civilians or civilian property must be proportional and not “excessive in relation to the concrete and direct military advantage anticipated”.
Please note that under International humanitarian law, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law permits belligerents to carry out proportionate attacks against military objectives even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (known as principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).
Principle of Neutrality
The principle of neutrality is not codified in international humanitarian law but has emerged as an important principle in the provision of humanitarian assistance. The principle of neutrality states that humanitarian aid agencies and relief personnel must not take sides in an armed conflict and or engage at any time in controversies of a political, racial, religious or ideological nature. This principle has been addressed in the annexure to the United Nations General Assembly Resolution 46/182 as a guide to the provision of humanitarian assistance.
Protection of Medical and Humanitarian Relief Personnel

International humanitarian law accords special protection to medical and humanitarian relief personnel. These rules are embedded in Chapter 7 and Chapter 8 of the ICRC Rulebook on Customary International Humanitarian law. The protection of medical personnel was earlier restricted to military medical personnel. Its scope was expanded through Article 15 of Additional Protocol I[xx] to cover civilian medical personnel in addition to military medical personnel in all circumstances. This rule is implicit in common Article 3 of the Geneva Conventions[xxi], which requires that the wounded and sick be collected and cared for, because the protection of medical personnel is a subsidiary form of protection granted to ensure that the wounded and sick receive medical care. The rule that medical personnel must be respected and protected is explicitly stated in Additional Protocol II[xxii]. However, it is important to note that medical personnel lose their protection if they commit any act outside their humanitarian function that might be harmful to the enemy.
Likewise, humanitarian relief personnel and objects used for humanitarian relief operations must be respected and protected. The obligation to respect and protect humanitarian relief personnel is set forth in Article 71(2) of Additional Protocol I[xxiii]. Similar provisions are also embedded within the Statute of the International Criminal Court wherein intentional attacks directed against personnel involved in a humanitarian assistance mission in accordance with the Charter of the United Nations is a war crime as long as such personnel are entitled to the protection given to civilians under international humanitarian law. Hence, members of armed forces delivering humanitarian aid are not covered by this rule. United Nations personnel delivering humanitarian aid, however, enjoy specific protection under the Convention on the Safety of United Nations Personnel.

Protection of Children in Armed Conflict
The principal legal instruments that aim to safeguard the rights of child in armed conflict are the following:
1. Geneva Conventions
2. Additional Protocols I and Additional Protocol II of the Geneva Conventions
3. United Nations Convention on the Rights of Child
4. Optional Protocol to the United Nations Convention on the Rights of Child
General Protection and Special Protection under Geneva Conventions
The Geneva Conventions along with its additional protocols accord general and special protection to children involved in an armed conflict. Children not taking part in hostilities in an armed conflict have the same general protection accorded to civilians under the provisions of Geneva Conventions IV and its Additional Protocols. These provisions include the guarantees that these treaties provide such as right to life, prohibition on attacks against civilians and prohibition on coercion, corporal punishment, torture, collective punishment and reprisals etc. However keeping in mind the particular vulnerability of children, the Geneva Conventions and its Additional Protocols of 1977 lay down a series of rules according them special protection. The important point to note is that children do not lose this special protection even if they take part in hostilities.
Article 77(1) of Additional Protocol I:
“Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.”
Article 77(3) of Additional Protocol I:
“Children under the age of 15 who taken direct part in hostilities and fall into the power of an adverse party shall continue to benefit from the special protection accorded by this article irrespective of whether or not they are prisoners of war.”
This principle of special protection accorded to children in armed conflict also applies non-international armed conflict. Article 4(3) stipulates the special protection accorded to children in non-international armed conflicts.

Limits on Participation of Children in Hostilities
Participation by children in armed hostilities occurs too frequently. This participation may range from aiding combatants (bringing them weapons and munitions, carrying out reconnaissance missions, etc.) to the actual recruitment of children as combatants in national armed forces and other armed groups. The 1977 Additional Protocols were the first international treaties to cover such situations. Article 77 of the Additional Protocol I discussed in the preceding section mandates state parties to undertake all feasible measures to prevent children under the age of 15 from taking direct part in hostilities. The article further prohibits the recruitment of children under the age of 15 into the armed forces and encourages states to give priority to the oldest children when recruiting those aged from 15 to 18.
On the other hand Additional Protocol II to the Geneva Conventions goes even further in imposing limits on the participation of children in hostilities. Article 4 (3) of the Additional Protocol prohibits both the recruitment and participation — direct or indirect — in hostilities by children below the age of 5 years. These same provisions have been reiterated in Article 38 of the United Nations Convention on Rights of Child that urges member states to respect the provisions of international humanitarian law relating to the protection of children in armed conflict as applicable to them. More specifically Article 38(2) and Article 38(3) impose the same limits on the participation of children in hostilities as those within the Additional Protocols of the Geneva Conventions. However the above mentioned rules are hardly observed in reality. Children who take part in hostilities in an international armed conflict are often recognized as combatants and in the event of their capture are entitled prisoner of war status under the provisions of Geneva Conventions Part III. However the instruments discussed above do not address the issue of recruitment of children by armed groups and militia’s. Article 4 of the Optional Protocol to the Convention on Rights of Child explicitly prohibits the recruitment of children by armed groups distinct from armed forces of a state.
Other efforts aimed at protecting the interests of children in an armed conflict include the “Cape Town principles and best practices on the recruitment of children into the armed forces and on demobilization and social reintegration of child soldiers in Africa” which were adopted in 1997. and the “Paris commitment to protect children from unlawful recruitment or use by armed forces.”

Evacuation of Children in Armed Conflict
In an armed conflict, efforts must be undertaken to ensure that children are accommodated in area’s or quarters where the intensity and danger of war is reduced. In this context children are often evacuated and sent abroad to neutral countries that have agreed or offered to accommodate them. Another reason for evacuation children to neutral countries is to ensure sufficient appropriate upbringing and education. Article 78 of the Additional Protocol I to the Geneva Conventions specifically addresses this issue and lays down the guidelines on how evacuation of children involved in an armed conflict is to be carried out. If the parents or legal guardian of a child can be found then their written consent for evacuation is required. If no such persons can be found, the written consent to such evacuation of the person who by law or custom are primarily responsible for the care of the children is required. Furthermore, each child’s education, including his religious and moral education as his or her parents desire shall be provided with the greatest possible continuity for the duration he is away.
This provision for the evacuation of children to safer area’s within the country in case of a non-international armed conflict is contained within article 4(3)(e) of the Additional Protocol to the Geneva Conventions. This article states that measures must be taken to ensure that children are temporarily removed from the area(s) in which hostilities are taken place and be temporarily transferred to another safer area within the country.
Detention and Internment of Children in Armed Conflict
Interment refers to the state of being confined as a prisoner for political or military gain. Therefore, children often find themselves facing internment or detention at the hands of the opposing parties who exploit them as a military tactic. Article 82 of the Geneva Conventions Part IV states that the detaining power shall ensure that members of the same family, in particular parents and children are lodged together in the same place of internment. The article also states that internees may request that their children who are at liberty without parental care be interned with them. Article 94 of the same section states that the detaining power shall allow children to attend school either within the place of internment or outside. This article further states that special playgrounds must be reserved for children for recreational pursuits and sports.
Exemption from Death Penalty
Children who take part in hostilities or have committed an offense related to an armed conflict are exempt from death penalty under the provisions of article 68 of the Geneva Conventions Part IV. These same provisions are also reiterated in article 77(5) of the Additional Protocol I and article 6(4) of the Additional Protocol II of the Geneva Conventions.
Conclusion:
While analyzing the provisions as provided by the International Humanitarian Law Treatise which is crucial in its postulation, it is important to address the issues of its international coherence, the imposition of consequences against those who commit war crimes and reparation of the victims is equally important and must be enforced in full effect by the international humanitarian law. Armed conflict results in damage beyond human repair and sets out administrations to a different route. Several laws under the Principles of International Humanitarian Law must add more specifically, ways for restoration of law order and stability at the same time as after war. Despite all the regulatory preventions most wars have resulted in a significant loss of life and the lions share belongs to civilian causalities wherein children and women are most affected. It is therefore very crucial to uphold and sustain the International humanitarian law in its true essence in areas of armed conflict.

