Law and Context: International Humanitarian Law

Subject: Sociology
Pages: 6
Words: 1423
Reading time:
6 min
Study level: College

Introduction

International Humanitarian Law (IHL) has significantly reduced the effects of war. It was created out of the necessity resulting the impacts of armed conflict and led to the creation of other humanitarian organization among them Red Cross. IHL achieves its purpose by creating laws in armed conflict. These laws mainly apply to the military operations among other variables. The military plays a major part in armed conflict hence IHL applies in the military of every state. This essay will give the history of the IHL. It will also discuss the obligations placed on the armed forces by the IHL and give operational challenges that are experienced.

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History of IHL

The origin of IHL can be traced back to Geneva Convection in 1864 and Hague Conventions in 1899 and in 1904. In accordance with Human Right Education Associates (2011, p. 1), the IHL spelt out restriction in which aggressive states could conduct war. Other laws emerged from the experiences of the First World War and the Second World War. IHL laws protected civilians, captives of war, attacks from the air, crude methods of taking lives and executions of the military. Another source of IHL is the United Nations (UN) Charter which demands that states shall not threaten or use force against each other unless it is for self defense. Additionally, IHL emanated from treaties that dictated rules of the war.

The objectives of IHL are to reduce consequences of war that affect human and property. It applies to all states. Most importantly, IHL protects persons who are susceptible to effects of war. The law concerning armed conflict is the main strategy of the IHL. It has however not been formulated to be constant at a particular time. This is dependent on the nature of war, the time and the states involved. The international court has developed IHL laws to try criminals of war (Human Right Education Associates, 2011, p. 1). In accordance with Red Cross (2011, p. 1), IHL was coined to protect casualties of war, provide medical care for them without discrimination and to label the medical personnel and equipment. Moreover, IHL would restrict the weapons used in war. Thus, weapons with mass destruction are discouraged.

The types of conflict that occur after the creation of the IHL have raised ethical concerns. Counterinsurgency, for instance, may be difficult to be undertaken without hurting the civilian. According to IHL, any form of war should not inflict any harm on the civilians. The military personnel abiding to the law must differentiate civilians from potential enemies who may conceal themselves to be identical to civilians. Thus, the military is constantly alert to attack. To obtain success, the population is treated with humanity while the military remain alert for defense.

In line with Oxfam Briefing Paper (2003, p. 2), the military has been assigned the duty to offer assistance and to give security to civilians in states with war. In many cases they have delivered help since other humanitarian have been insecure to do so by themselves. They note that the best approach to assist the civilians is by letting the humanitarian give assistance with the security of the military. The military offer assistance with the humanitarian and cannot be distinguished from them since they can be in civilian clothes. It is therefore impossible for the civilian to distinguish those who are there to assist and those who are there for war and assistance. At times this may lead to other conflicts that are not intended. Thus, the best help that is offered to civilians involves the humanitarian and not the military. The military should be there to protect.

Counterterrorism has enacted measures that make it possible to protect self and act quickly in case of threat or attack. The military has sometimes invaded individual’s privacy, detained suspect without proper administration and restrained the movement of civilians causing abuse of human rights. Nevertheless, in some instances, the security measures have yielded fruit after apprehension of suspects (Humanitarian Assistance and Protection, 2011).

According to ICRC (2010, p. 1), it is the obligation of all the military personnel to observe the laws of armed conflict. Among the requirements is that they must avoid hurting civilians and medical personnel and avoid use of weapons that cause excessive suffering. Thus human rights and human dignity must be upheld. The obligations apply within and outside the state.

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Hoffman (2001, p. 241) argues that the military are involved in the complex emergencies and hinder the operations. They become a threat as they are part of the armed conflict. Piper (2011) indicates that IHL objective being to protect the civilians, the military support becomes a threat endangering the humanitarians, civilians and the military.

Conventional war- fighting is another ethical concern that arises. Though the state engages in open fighting with well trained military that has the knowledge of IHL, effect of war may spill over and affect civilians. Although the war does not have any nuclear, chemical or biological weapon, a country’s military may be weakened up to point where it cannot offer protection to its state. With the aim of becoming powerful, one of the members of the armed conflict may result to unconventional war (Professional in Humanitarian Assistance and Protection, 2011).

Vocke (2010, p. 1) points out that that non-state war is becoming more prominent. This challenge faces many ethical questions because such non- state military groups have engaged in war yet they do not subscribe to IHL. Instead of restricting the IHL to the states, it can be extending to such combatants so as to protect the vulnerable civilians, war prisoners and protection. However, making the non- state combatants subscribe to IHL would be viewed as a way of legitimizing them. With the view of providing security, the IHL can be sensitive to the changing nature of war and offer the law of armed conflict to such non- state combatants.

As stated by Mayer (2009, p. 1), The IHL has been ignored and misused by the States. Irrespective of whether the war is between states and non state, the target has been civilians. The combatants use terror to control the activities of people to sustain the war. What is more is that the states end up losing the capacity of giving protection to the people as it engages in war or defense.

Williamson (2002, p. 181) notes that the contemporary wars have been characterized by the military wearing civilian clothes. This has placed vulnerability where the military, humanitarian, peacekeepers or any other person cannot be distinguished from the other. This has posed challenges in the process of creating stability and reconstruction. It is therefore important to follow the IHL. ICRC (2005) suggests that combatants can choose to identify with uniform and select a different location for the armed conflict. This is because the civilian is not entitled to any benefits in the war.

The effects of war are devastating as Haven (2011, p. 1) reveals. The military personnel are also affected by war psychologically and may need support to recover. States spend a lot of resources in training and equipping the military. Although they provide such protection, the civilians are affected. Moreover, the effect of war is felt by the poor irrespective of the presence of the IHL.

AIHRC (2010) points out that the air operations that have been witnessed in states with war have not minimized the effects on the civilians. This is because instead of adhering to the IHL, the combatants have purposefully targeted the civilians. According to International Institute of Humanitarian Law (2011), civilians must be protected at all cost. Those affected must therefore be compensated.

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The consequences of war are devastating and thus it is important to punish criminals of wars (International Criminal court, 2011). The UN Charter prohibits war hence the International Criminal Court Tribunal is set up to establish who was responsible for the law. Wars cause loss of lives and suffering.

Conclusion

IHL objective is to minimize the consequences of war by protecting civilians and enacting laws that protect humanitarian efforts for food and medical attention without discrimination. The laws of armed conflict are developed to achieve the purpose. The military being involved in the conflict must observe the IHL and protect lives of the civilians. The military has been used in the armed conflict and as humanitarian hence the two roles are contradictory. Their activities have been known to hurt the civilians they are suppose to protect. The international criminal court assists in punishing the criminal of war.

Reference List

AIHRC., 2010. Violations of International Humanitarian Law in Afghanistan Practices of Concern and Example Case. Web.

Haven, C., 2011. Ethics and war explores the contradictions of modern conflict. Web.

Hoffman, M. H., 2001. Physicians and international humanitarian law in complex Emergencies: controversies and future opportunities. International Humanitarian Law and Policy, 16, 4, 239-243.

Human Right Education Associates., 2011. International humanitarian law. Web.

ICRC., 2005. International Humanitarian Law – Treaties & Documents. Web.

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ICRC., 2010. Customary IHL. Web.

International Criminal court., 2011. Rome statute of the International Criminal Court. Web.

International Institute of Humanitarian Law., 2011. International Humanitarian law.

Mayer, C. T., 2009. International Humanitarian Law: it’s not Just for Soldiers Anymore. Web.

Oxfam briefing paper., 2003. Iraq: humanitarian military relations. Web.

Piper, P. S., 2011. General Disaster coverage. Web.

Professional in Humanitarian assistance and protection., 2011. Humanitarian law and Policy. Web.

Red Cross., 2011. Geneva conventions. Web.

Vocke, W., 2010. Global Ethics Corner: International Humanitarian Law and Non- State Actors. Web.

Williamson, J. A., 2002. Status and obligation of mercenaries and private Military/ security companies under international humanitarian law. Web.