Alafiya Ali, Student, Chanakya National Law University
Is International Humanitarian Law Really A Law?
When we talk about the core of IHL treaty law applicable today, it is often referred to the 1907 Hague Convention on the Laws and Customs of War, the four 1949 Geneva Conventions and the two 1977 Additional Protocols to those Conventions.
The legal nature of the rules regulating armed conflicts has sometimes been called into question for several reasons. The main one is that it is claimed that it is frequently violated.
But this does not seem to be a good reason. As a matter of fact, States and armed groups often go to considerable lengths to adhere to rules of international humanitarian law. Many states take care to follow the legal instructions given by their legal advisers on the subject when conducting military operations. Sometimes, states even adopt stricter rules, for example the case of Belgium with respect to airstrikes against ISIL in Syria and Iraq. Belgian pilots are prohibited to cause any collateral damage to civilians, even when such damage would be authorized under IHL.
IHL is no more frequently violated than a number of other legal norms, whose legal nature is uncontested. The problem is that in the field of armed conflicts a single violation may have huge and disastrous consequences and often attracts media attention. In addition, as a matter of principle, regular violations of a rule do not deprive it of its legal character. Take the example of national rules regulating the speed limit. They do not cease to be legal norms because they are frequently violated. More fundamentally, any legal norm implies that it may be violated, at least to some extent.
The aim of a legal norm is to incite its addresses to adopt the behavior that it prescribes. It would be useless for a legal norm to prescribe a behavior which is always adopted and followed. Another criticism against the legal nature of IHL is that there is no sanction when it is violated.
Again, this does not seem to be true. It is true that there is no judicial mechanism specific to IHL to sanction violations of that law, but there are many other ways through which such violations are legally sanctioned, including through international criminal tribunals, the United Nations Security Council or the human right bodies. In addition, there are not only legal sanctions. International disapproval by the world opinion may also be a form of sanction, putting pressure on the states to respect IHL.
So why is it that we consider IHL law? The simple answer is that states accept it as such. When states are accused of violating IHL, like international law in general, they will not argue that the violated rule, for instance the rule against targeting civilians, is not of legal nature. Most often, they will deny the facts by saying we did not do what you said. They will invoke exceptions to the prohibition or give a particular legal interpretation of their conduct and state that it does not fall into the scope of the prohibition.
International Human Rights Law Vs International Humanitarian Law
Human rights law and IHL share some obvious common features. They pursue the same objective to protect human beings and human dignity. This object means that they both have some distinct features from the perspective of the law of treaties where obligations are usually reciprocal. For instance, a consequence of the non- reciprocity of IHL convention is that a violation of an IHL convention by one state does not give its enemy a right to violate the same convention, as would be normally the case in, for example, a trade treaty.
More generally, the content of both legal regimes is often similar. Take, for example, the basic protection afforded to non-combatants under common Article 3 of the four Geneva Conventions. As we know common Article 3 prohibits murder, mutilation, torture, taking of hostages, cruel and degrading treatment, as well as summary executions. Each of these acts is also prohibited under human rights law. That having been said, the differences between human rights law and IHL are far greater than their similarities. Their origin is different. As we know, modern IHL emerged in the second half of the 19th century and its evolution is closely linked to the development of the International Committee of the Red Cross. The Committee is strictly neutral.
By contrast, modern human rights law developed after WWII under the influence of the United Nations, a political body. On a more technical level, human rights law and IHL have a different scope of application. In terms of whom they apply to, IHL provides individuals with different kind of protection depending on the category to which they belong. For example, there are specific rules for sick and wounded people, prisoners of war, and civilians or civilian population. Human rights law does not make any equivalent distinctions. It protects anybody regardless of his or her status.
There is another significant difference, IHL binds not only states but also non-state actors, particularly armed groups. By contrast, the application of human rights law to non-state actors is very controversial. The majority view is that it does not apply to non-state actors, especially to armed groups. There are also differences in where the law applies. IHL applies in any armed conflict regardless of where they take place, while human rights law only applies to persons who are under the jurisdiction or control of the state in question.
Also, another difference is the fact that the specific rules of IHL that apply to a particular conflict will depend on the nature of that conflict. As mentioned earlier, the whole body of a IHL applies in an international armed conflict, while only some rules apply in non- international armed conflicts. There is no such distinction under human rights law, except that states may derogate to some human rights when their survival is at stake.
The final, and one of the most important differences, concerns the existence of international bodies charged with interpreting or applying the legal rules. Under IHL, there is no judicial or political body that is specifically in charge of monitoring the application of IHL and sanctioning violations. It is true that international criminal tribunals, such as the International Criminal Court, are competent to try individuals for serious violations of IHL (and therefore may sanction those violations) but those jurisdictions are not specific to IHL and extend into areas not covered by IHL. International criminal tribunals do not judge States and do not sanction all IHL violations, but a set of specific, serious violations referred to as 'war crimes.'
It is also true, that some specific mechanisms for implementing IHL exists, such as the International Committee of the Red Cross. However, those mechanisms are not judicial mechanisms and are not designed to sanction IHL violations. By contrast, there are several specific political and judicial bodies that have been established in order to interpret, apply and develop human rights law.
Contemporary Issue- The Use of Lethal Force
IHL allows the use of lethal force against lawful targets because of their status, in particular as combatants or as civilians directly taking part into the hostilities. This has classically been interpreted as allowing the killing of such targets without requiring that capture and arrest of the person must first be attempted. What is therefore crucial in that respect is the category to which the person belongs. Under human rights law, the use of lethal force is only allowed in case of absolute necessity, which legally requires attempting to arrest and capture the person.
We have therefore two different paradigms, the traditional IHL paradigm and the human rights law paradigm which is more restrictive. The human rights law paradigm is also called the law enforcement paradigm. So, which of the two paradigms, IHL or human rights law, must be applied?
There are four main positions on that subject. The classical view, supported by many states and based on the lex specialis principle, is that only the IHL paradigm applies. In other words, this is always IHL which will regulate the targeting in any situation related to an armed conflict, allowing the use of lethal force against lawful targets because of their status.
However, this traditional position is contested. The first alternative view is that only the human rights law paradigm applies in certain situations, namely in regions outside of the battlefield, when the targeting by a state takes place in such regions which are under the control of that state. This view criticizes the opinion that the lex specialis principle would necessarily displays the application of human rights law. Indeed, it is not always easy to distinguish the specific norm from the general one.
What does 'specific' really mean? We could for example argue that human rights law, rather than IHL, is the specific law applicable to the conduct of armed forces of a state on its territory, of course when that state controls it, especially in case of non-international conflicts. We know that IHL only provides for a general protection in non-international armed conflicts and that the human rights protection is more detailed. It is therefore argued that, in case of effective control exercised by a state over the area where the target is located, it is the human rights paradigm which must always apply, instead of IHL.
Another alternative view, which leads to a similar result in terms of targeting, is to consider that, when applicable, both IHL and human rights law concurrently regulate targeting in any situation related to an armed conflict. None of them would displace the application of the other. Their application may either lead to the same result, in particular when the targeting takes place in the battlefield, or it may lead to different results, especially when targeting takes place outside the battlefield in a region effectively controlled by the targeting states. In that case, both IHL and human rights law would have to be respected, with the application of human rights law being stricter than the application of IHL.
There is a last alternative view, which also leads to a similar result, but it applies not only to States but also to armed groups. This view is indeed based not on the application of human rights law, which binds only States, but on a particular interpretation of IHL which binds both States and armed groups. It is to consider that only IHL applies but not the traditional IHL paradigm.
The paradigm is indeed called into question. It is argued that IHL does not give an unlimited right to use lethal force against lawful targets. The notion of military necessity, which is proper to IHL, would limit that right. In that sense, if the capture of the person is possible and the use of lethal force not necessary according to military necessity, it is required under IHL not to use lethal force. This is a more restrictive IHL paradigm. This may particularly be the case when a legitimate target is located in a region firmly controlled by the enemy. That position has been supported by the International Committee of the Red Cross. Many of the states recognize that they adopt such approach as a matter of policy.
Conclusion
Armed conflicts have been an ever-present threat to human society. Armed conflicts still occur today in many parts of the worlds, in particular regions such as the Levant, Africa and Asia are badly affected. Moreover, we are witnessing the rise of new forms of armed conflict. Notably the emergence of the so-called Islamic State has seen the rise of ad-hoc and deliberate attacks against civilians, far removed from the battlefield. Almost every day, the media reports on actions taken in armed conflict and of the horrific consequences of those actions. IHL works as a ray of hope for tackling conflicts and reducing fatalities going on around the world.
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