Wars and conflict have to a great extent been a major feature of the modern world. The electronic and print media is rife with conflicts occurring in different parts of the world, for instance, recently in Darfur and in the Gaza Strip. Overall, it does happen that some conflicts may not make it into the headlines due to lack of lack of interest or even political pragmatism. “Save succeeding generations from the scourge of war”. This is the message contained in the ruling to the prelude of the Charter of the United Nations.
Nonetheless, conflicts ensue and innocent civilians have been the major victims. They have been maimed, tortured and even killed. Consequently, rules that will guarantee the protection of civilians caught up in war were formulated. The rules became part of International Humanitarian Law (IHL).
This paper seeks to discuss, the principles of IHL that were formulated so as to guide parties involved in armed conflicts.
It also seeks to address the obligations accorded to state government especially as pertains to the protection of civilians in armed conflicts. Analyzing the IHL principles and state obligations will provide crucial insight into the possible downfall and loopholes, especially as far as the protection of civilians during wars is concerned, leading to the ineffectiveness of IHL.
International Humanitarian Law (IHL) has been especially crucial in setting the guidelines to be followed during war and armed conflict as a way of protecting the innocent civilians. IHL is defined as law of armed conflict. Again, IHL may also be described as the law of war and its effects. The formulation of the rules was a step in the right direction for the simple fact it is meant to guarantee the protection of vulnerable people in society, primarily the civilians and those not actively involved in a war. Those not actively involved in war are also referred to as the non combatants. They include civilians, medical personnel and organizations providing humanitarian relief services, for instance the Red Cross. In addition, IHL was formulated to protect civilian property. However, it is worth noting that despite the rules being in place, reports have abound on civilian injury and even death whenever there are armed conflicts and war. This then goes to show that to a great extent humanitarian law has been greatly ineffective (International Humanitarian Law 2007).
The Geneva Convention
A total of four Conventions were held in Geneva in 1949. In the discussions, provisions for civilian protection during war and conflict were addressed. The Fourth Convention was essentially built on the models of the previous three Conventions. Convention IV which is comparative to the protection of civilian persons in time of war is one primary humanitarian law treaty that was signed in Geneva, on the 12th of August 1949. Article Three of this treaty is especially important as it clearly states the provisions that are to guide conflicting parties (states) regarding the treatment of parties (civilians) not directly involved in the conflict. It had become apparent that whenever there was a conflict, it is mostly the innocent civilians that suffered (Pagetti 2007). The civilians are often terrorized and subjected to serious abjection. The treaty is categorical that persons who may not be actively involved in conflicts and hostilities, especially civilians, members of the armed forces who have since retired from active duty and members out of the war/combat (hors de combat) as a result of detention, sickness or wounding are to be accorded special treatment. They are all to be treated humanely without any kind of discrimination on the basis of race, color, sex, religion or even faith (International Humanitarian Law 2007).
Principles of International Humanitarian Law
IHL principles are contained in the Geneva Convention. One major principle requires conflicting parties to clearly differentiate between combatants and the civilian populations. This is also referred to as the principle of precautions in attack. Distinguishing combatants from non combatants prevents attacks on civilians. This is closely related to the principle of distinction that prohibits conflicting parties from engaging in war means and methods that do not provide a clear distinction between combatant and non combatants. More over, the parties are supposed to work towards protecting civilian lives and property. This is contained in Article 48 of Additional Protocol I of the Geneva Convention of 1949 (Diakonia 2007). In more ways than one, the principle of distinction may also be considered as an upshot to the principle of protection. It would be a fallacy to talk about the protection of vulnerable groups before there has been a clear distinction of who exactly they are. It is practically impossible to follow through on protection without distinction. In the principle of proportionality, conflicting parties are not allowed to attack adversaries if there is a chance that harm, injury or death of civilians is likely to result and/or if the civilian casualties will be much larger than the perceived military advantage. This particular principle is contained in Article 51 of Additional Protocol 1 (Diakonia 2007). The principles require conflicting parties to refrain from harming and killing adversaries who have either surrendered or withdrawn themselves from combats. This may then be taken to mean that even though prisoners of war may be taken, they are not to be subjected to ill or inhumane treatment. Closely related to this is that conflicting parties should not physically or mentally torture their adversaries. Last but not least, the principles also oblige conflicting parties to engage in limited methods and means of warfare (International Humanitarian Law 2007). It would be imprudent for the conflicting parties to use warfare means that have not been regulated in International Law.
Accordingly, in the Convention, certain acts against the non combatants (civilians) is clearly prohibited. This is guided by the IHL principles. One act that is greatly forbidden is violence more so to the innocent civilians and their lives. It then becomes illegal under International Humanitarian Law to murder, torture, mutilate or generally mistreat the civilians (International Humanitarian Law 2007)..
The taking of hostages is also outlawed in the Convention. In most instances, whenever a conflict ensues between parties, it is mostly the civilians who are taken as hostages. One party may take hostages from the enemy side and use them as bargaining chips and to gain leverage over the other side. As per the Convention, people not actively involved in a conflict/war are to be treated humanely. It is then expected that the conflicting parties are to collects and care for the wounded and the sick. This may be taken to mean that conflicting parties are expected to take responsibility for the consequences and effects of war (International Humanitarian Law 2007).
On the 8th of June 1977, two Additional Protocols were added to the Geneva Convention that was formulated in 1949. These were Protocol I and II. Protocol I was designed so as to deal with armed conflicts of an international nature. Conversely, Protocol II was formulated to deal with armed conflicts that were not international in nature. The reason that two different Protocols were designed was because it was primal that the two different contexts in which war occurs were defined. More over, states were not really in support of the same amount of legal protection being accorded in the different settings. Consequently, civil wars fall under Protocol II. The biggest importance of the Protocols is the fact that they clearly stipulated the humanitarian rules that are to apply in civil wars. In Article 51 of Protocol 1 of 1977, certain rules governed by international law were instituted as a way of protecting civilians in war/conflict. It was engendered in the Protocol that at not time are civilians to be the objects of indiscriminate attack, threats or violence. “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited..” Protocol I Art 51, Protocol II Art 13 (International Committee of the Red Cross 2009). There was a moral impulsion behind the formulation of the two protocols. The Second World War had resulted in massive civilian casualties. Thus the protocols were an international reaction to the outcome (International Humanitarian Law 2007).
State obligations as contained in the Geneva Conventions and in the Additional Protocols.
IHL has stipulated measures/obligations in the Geneva Conventions and the Additional Protocols that state governments are to adopt and comply with for international law to be effective. One major obligation requires that state governments offer effective instructions and training to its armed forces. International Law is a complex field. Consequently, it is not enough to provide the military with huge manuscripts, they should first be translated into simple understandable language. This way the armed forces who are also the combatants in war are better informed on what is expected of them when engaging in a conflict. Ignorance should never be taken as bliss in international law. Rules which are unknown or not understood by those who are expected to respect them such as the armed forces will not have the desired effect. Instead, there will be consequences to face. It is to be expected that if Protocol 1 of the Geneva Convention is not adhered to, hoards of civilian may be injured or killed during a conflict. Accordingly, there would be much condemnation and even sanctions from the international community on the party responsible for the atrocities on civilians (International Humanitarian Law 2007)..
The second obligation pertains to domestic legislation on the implementation of the protocols. Most of the provisions of the Geneva Conventions and the Additional protocols require the enactment of laws and other obligations by states. This is for purposes of guaranteeing the total and complete implementation of the international obligations. This is especially true for serious contravention of international humanitarian law which constitute war crimes. Countries are obligated to formulate policies/rules to deal with such crimes under domestic law (International Humanitarian Law 2007).
The third obligation requires the prosecution of persons accused of seriously breaching IHL. These may be people accused of committing war crimes and even genocide. IHL necessitates that such persons are to be prosecuted by the states under whose authority they may be under. Sometimes, a state may be unwilling to prosecute the accused. In this case, the extradition of the suspect to a state that is both willing and able to prosecute the suspect is allowed. There is also provision to try individuals accused of violating humanitarian laws in an international criminal court. The International Criminal Court in the Hague has received numerous cases to try individuals accused of violating humanitarian laws. It prosecutes individuals accused of war crimes, genocide and crimes against humanity (International Humanitarian Law 2007). Case in point, Charles Taylor a former Liberian President accused of supporting and funding war crimes in the neighboring Sierra Leone was extradited from Liberia and is currently undergoing trial in the Hague (BBC News 2007).
Thus, the codification of IHL in the Geneva Convention of 1949 and the inclusion of the 1977 Additional Protocols greatly changed the international legal landscape (McCormack and McDonald 2006). Civilians became entitled to some form of protection under international law in times of war. More so, if they were not actively and directly involved in the war. The International Committee of the Red Cross (ICRC) was assigned the specific mandate of protecting and assisting the victims under the Geneva Convention (IRINNews.org 2009).
However, despite the formulation of laws protecting civilians in a war, it is evident that even with the best of intentions, injuries to and even death of civilians has not been put to a stop. “Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King Jr. According to reports by the International Committee of the Red Cross and also by the United Nations, the number of civilians who have been wounded or killed in wars and armed conflicts has greatly risen since World War II. In the 1990’s, civilians were said to account for a record 75% of all casualties. It would then be safe to conclude that to date the number has increased even further. However, critics argue this to be an exaggeration for the simple fact that post conflict casualties, for instance, those who may have died out of disease and starvation, may have been included in the final tally (Fellmeth 2008).
Consider the Revolutionary Armed Forces of Colombia also known as the FARC, which is defined as a leftist (Marxist) insurgent group. Its main goal since the 1960’s has been to overthrow the Colombian government. As the conflict between the group and the Colombian government ensues, it is the civilians that have suffered the most. The Farc, have held over 700 hostages. The group justifies the taking of hostages as a legitimate military tactic (CNN.com 2008). Such hostages live in deplorable conditions in the heart of the Colombian jungle. The actions by FARC are clearly against Article Three of the humanitarian law treaty that calls for the protection of civilians in times of conflict. It is clearly evident that that the FARC is openly flouting the Fourth Convention in its entirety. However, it is debatable if FARC is aware that the Convention does exist in the first place.
Traditionally, the Geneva Convention on the protection of civilians was centered on first differentiate between the civilians and the military targets. This was based on two main hypotheses. On the one hand, before the two World Wars, conflicting parties did not target on the civilians for the simple fact that they did not link it with any military advantages. On the other hand, the conflicting parties were keener on maximizing their resources by only targeting on the opponent’s military assets. This was very distinct from their moral and legal obligations. It did not appear logical to attack the civilians. In most cases, the civilians were shielded from conflict and physically kept away from danger by the army. International Humanitarian Law (IHL) seems to be still based on the traditional assumptions. While war and conflict have evolved through the years, International Humanitarian Law seems to be still pegged on the traditional assumptions. According to the International Committee of the Red Cross (ICRC), war has greatly changed. As opposed to targeting and attacking the enemy’s military assets, civilians have increasingly become the objects of attacks (Slaughter and Burke-White 2002).
According to Darcy, attacks on civilians has resulted in widespread uncertainty especially as far as the civilian protection agenda is concerned and also on how civilians are to be protected. Questions abound as to whom or what the civilians are to be protected from, the kind of threats they are to be protected from and who is charged with the primary duty of protection. Consequently, the answers vary and depend on the sphere of policy on which civilian protection is addressed. Depending on the angle that it is looked at, either from a human rights or humanitarian angle, the protection is different. More over, it is also different when analyzed from a foreign policy and a political perspective. Case in point, Darfur. There appears to be confusion over the general scope, meaning and priority agendas of civilian protection. The result then is that protection efforts are greatly undermined (2007).
As stated above, warfare has greatly evolved. Before the advent of biological weapons, weapons of mass destruction or even airpower, International Law did not at all feature in civilian protection as it was primarily the jurisdiction of domestic law. No laws have been formulated to deal with the new generation of threats and this is where the uncertainty rises (Slaughter and Burke-White 2002). More over, there are conflicts that are not restricted to particular state territories. The problem is that IHL is not involved in the control or regulation of armed conflicts that occur on more than one state territory. Sometimes, countries succeed in rebranding armed conflicts as civil wars so as to avoid many of the war treaties. These are major loop holes in IHL as they presents conflicting parties with an opportunity to engage in atrocities and war crimes against civilians without any kind of accountability (McDonald 2004). This is a big challenge to the principles of distinction and protection which consequently render IHL ineffective. It is worth noting that armed conflicts of today seem in contravention of the model envisaged by IHL for such conflicts. More often than not the principle of distinction is rarely, if ever, respected (McDonald 2004).
According to McDonald, in the event of a conflict/war, IHL mandates that the conflicting parties clearly distinguish between the combatants and the non combatants. However, this is never a clear cut or easy responsibility. Case in point. More and more, states have come to rely on civilians to help/perform certain duties that were hitherto the preserve of the armed forces and the military. The involvement of civilians in military activities is what is referred to as civilianization of the military. In certain countries such as the United States, civilians have been recruited to take up in such activities as manufacture, design, operation and even maintenance of weapon systems (2004). This greatly complicates the principle of distinction for the simple reason that these tasks could be interpreted to mean the direct participation of the civilians in conflict/hostilities. This is especially true when carried out in the milieu of an armed conflict. In some instances, civilians are often deployed to work in combat situations. In this case, they may be required to dress up in army uniforms , helmets and even body armours. This way they are able to fit in better with the military personnel and it also guarantees their safety. However, the dressing up is potentially dangerous. When the civilians are dressed up in military fatigues it becomes that much harder to distinguish them from the military personnel who are also the combatants in a war/conflict. Though sometimes the civilians may wear patches denoting their civilian status, it may be hard for the adversaries to distinguish between the civilians and non civilians (McDonald 2004). IHL does not contain provisions to guide the involvement of civilians who though not combatants are involved in military activities.
In addition to distinguishing between combatants and non combatants, it is also imperative to distinguish between military and civilian targets. As per IHL, civilian targets are to be protected. However, modern armed conflicts seen to flout this distinction principle. One good example is the armed conflict between Israel and Gaza. On the 27th of December 2008, Israeli strikes seemed to be aimed at non military targets. How does the Gaza Training College qualify as a military target? However, Hamas is also not without blame. Rockets have been fired with an aim of terrorizing civilians in Israel as opposed to military targets. These two countries are greatly undermining the principle of distinction and involving innocent civilians in the conflict (Kouchner 2009). In most cases, IHL is not respected for the simple fact there is no mechanism for following through on the adoptions of obligations and implementation by state governments in the first place.
By and large international judicial institutions are weak. This is another reason that IHL seems to be ineffective in preventing the injury and death of civilians. Just as war has evolved over the years the culture of impunity has also greatly increased. As a result, individuals responsible for atrocities against civilians are often sheltered and protected. Accordingly, most states are either unable or unwilling to bring such individuals to justice. Ultimately, this then only serves to undermine the effectiveness of the entire legal network. The legal network then just becomes the proverbial dog that just barks but does not bite. It has no power to enforce its decisions. The establishment of the International Criminal Court (ICC) and such tribunals by the United Nations Security Council as those for the former Yugoslavia and Rwanda was necessary in order to effectively deal with the culture of impunity. Thus the solution lies in the strengthening of the International Justice Systems. However, while such courts as the ICC may receive their mandates from IHL, they still have to rely on the good will of the individual states. Without the good will, they become somewhat obsolete (Bruderlein and Leaning 1999). It then becomes very challenging to protect civilians from their authorities.
IHL has been mostly ineffective in protecting civilians for the simple fact that not all countries/conflicting parties comply with the obligations assigned to then by international law. More over, certain conflicting parties are not even party to the Geneva Conventions or the Additional Protocol II. This means that in the event of a war or a conflict, the conflicting parties rarely, if ever, respect international rules especially as they pertain to the protection of civilians. This coupled with the fact that the practical implementation of legal systems is hard renders the situation even more difficult (The United Nations Security Council 2006). This goes to show that humanitarian law is heavily reliant on informal procedures. As opposed to treaties, for instance in human rights, which have formal procedures in that a monitoring body has been constituted to receive complaints submitted by individuals, the same cannot be said for humanitarian law. If the informal procedures are not respected or adhered to then ultimately, there is also no respect for humanitarian law.
According to McCormack and McDonald, IHL also seems to be ineffective because it is not applied equally everywhere. It seems that the international community is much more willing to get involve itself where interests are involved. Where no interests are involved, neutrality is applied. It is for this reason for example that there was greater international involvement in such countries as Kosovo, Afghanistan and even Iraq and way much less attention and/or involvement in such countries as Darfur or the Gaza Strip. It was evident that the readiness to take action, sponsor and sanction was only great in such countries as Iraq as compared to Darfur. It does not take much to discern that when singular interests overrule responsibility, IHL will fail. Consequently, it is imperative that where the lives of civilians are in danger, international law takes centre stage. IHL does not seem to have provisions that regulate the principle of neutrality especially as it pertains to land warfare. The question of whether neutrality is still a viable option under the United Nations Charter is crucial. IHL should clearly prescribe the rights and duties of countries not parties in an armed conflict (2007).
The provisions of international law as contained in the Geneva Conventions may have been widely accepted the world over. Still, there are many challenges to its implementation. For instance, in international law, the protection of civilians is primarily the duty of state governments. However, it is unfortunate that most governments have abdicated on this duty. States are able to abandon their duties because of there is no clear distinction between the duties of civilian protection and the provision of humanitarian aid in international law. States government give up their duty because they are ill informed that humanitarian organizations in addition to providing aid will also be involved in the protection of civilians during a conflict or a war (McCormack and McDonald 2007).
IHL in place has been unable to control the proliferation of small arms for instance in sub Saharan Africa because there are no provisions in place to regulate the activity. It is worth noting that weapons such as guns are easily transported from one country and into another. These are the same weapons used to commit crimes against civilians. Laws have to be formulated and implemented regarding cluster munitions such as bomblets and mines. Use of indiscriminate weapons is clearly restricted in the principles of IHL. Instead states are mandated to engage in limited means and methods of warfare. Modern armed conflicts clearly do not respect the principle that prohibits the use of weapons with indiscriminate effects. The armed conflict between Israel and Palestine has involved the use of weapons that have indiscriminate affects. It is apparent that aerial bombing through rockets and the use of gun fire by the conflicting parties is not used in any way that seems to guarantee the safety of the civilians. The bombing of colleges and schools in Gaza speaks volumes (Kouchner 2009). This could be blamed on loop holes in International Humanitarian treaty law. Air warfare was and is still not fully and completed regulated by any specific convention. While Additional Protocol I tackles some critical issues in airfare as aerial bombardment, crucial guidelines seem to have been left out (McCormark and McDonald 2007), especially as pertains to bomb lets.
According to the advocates of International Humanitarian Law, implementation is the single most factors to ensure its ineffectiveness. Success may only be realized the minute state governments commit themselves to implement, endorse and codify the various protocols and conventions linked to armed conflict laws into their national laws and also guaranteeing their implementation on the ground (IRINNews.org 2009). More over, respect to international law obligations is primal.
States, like individuals have their own particular interests that they seek to advance. In the process of advancing the interests, conflicts may ensue. State shave a right to use force in order to protect their interests. Consequently, it is possible for the conflicts to be armed in nature. The repercussions are grave. Death and injury of combatants and non combatants is the end result. International Humanitarian Law (IHL) is used to describe a set of rules that seek to limit the effects of armed conflicts. The main goal of the law is the protection of persons not involved in the armed conflict. More over, it restricts the methods and means of warfare employed. However, there are certain loopholes that render IHL ineffective and unable to guarantee civilian protection. The loopholes exist for the simple fact that there is no definite way of ensuring the implementation and adherence of IHL. More over, there is no respect for the laws. For example, Israel and Palestine may be well informed about IHL yet they clearly flout the rules and principles when they target on civilians as they engage in conflict. There are no mechanisms in place to ensure that states respect and adhere to IHL. On the other hand, the civilian protection agenda is largely uncertain. This has been brought about by the evolution of warfare. Most of the activities that are taken as means of war such as biological weapons and weapons of mass destructions were not regulated in the Geneva Conventions or in the Additional Protocols. In addition, modern militaries have been civilianized and there are no provisions on how such actions are to be regulated. The solution lies in the design and formulation and processes that will guarantee adoption, implementations and respect of IHL.
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