International Humanitarian Law (IHL), also referred to as the law of armed conflict 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. It is a tenet of International Law (IL) that originated from ancient civilisations and religion, given the fact that warfare has always been subject to certain principles and customs. Universal codification of IHL started in the nineteenth century and since then, states have agreed on a number of principles based on the bitter experience of modern warfare. The goal of IHL principles is to strike a careful balance between humanitarian concerns and the military requirements of states. This article looks at the intricacies of IHL principles that hinder adherence, citing examples from contemporary wars/conflicts.
IHL applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. Its application is in effect only once a conflict has begun, and then equally to all sides regardless of who started the fighting. It distinguishes between international and non-international armed conflict. While the vast majority of wars currently taking place in the world are non-international armed conflicts, sometimes referred to as civil wars, what we are seeing happen in Ukraine is legally classified as an international armed conflict, a conflict between States, because hostilities have broken out between their armed forces. This means that the Geneva Conventions and their First Additional Protocol are fully applicable, as are customary international humanitarian laws and a number of weapons treaties
Under the laws of war, there are three cardinal principles that regulate the ways in which parties to an armed conflict may carry out military operations, i.e. may conduct hostilities. These are the principles of distinction, proportionality and precautions, all codified in Additional Protocol I and all customary international law. They aim is to protect civilians against the effect of hostilities.
In view of the developments which have taken place in methods of warfare and the continual invention of new weapons, it became clear that the extensive use of certain weapons would mean extermination of whole nations and the end of civilisation. According to Hague IV article 22, means of injuring the enemy belligerent are not unlimited.
Under the cardinal principles of the International Court of Justice (ICJ), there is prohibition against indiscriminate means and means that cause unnecessary suffering or superfluous injury. The principle of prohibition against indiscriminate means dictates that States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. However, in almost all recent armed conflicts whether international or civil conflict, civilians have been directly attacked and many killed or injured.
When it comes to the use of nuclear weapons, in the case of the Russian war on Ukraine, Russia, at one point threatened to use nuclear weapons. There is no treaty or customary law that authorizes the use of nuclear weapons just like there is no treaty or customary law that comprehensively and universally prohibits their use. However, threat or use of nuclear weapons is contrary to the principles and rules of IHL. It is also important to note that the ICJ cannot conclude definitely in extreme circumstances of self-defence in which the very survival of the state would be at stake.
The application of IHL is reactive and not proactive, it is always after the loss of lives and destruction of infrastructure that the world looks back in retrospect to analyse how the war or conflict was fought. For instance, when it comes to analysing unlawful acts of perfidy and ruses of war. Both means of warfare share a common ground as both categories stem from deception and stratagem, yet perfidy is largely a violation of IHL while ruses of war are legitimate means in warfare. How to differentiate the two depends on the mutual trust which must exist between enemies if IHL is to be complied with. However, by the time states resort to war, trust should be the last thing to expect from each other on the battlefield.
For the readers not familiar with the above terms, perfidy refers to acts inviting the confidence of an adversary to lead them to believe that they are entitled to or obliged to accord protection under the rules of IHL applicable in armed conflict with intent to betray that confidence. Examples include, feigning of intent to negotiate under a flag of truce or surrender, feigning of civilian or non-combatant status, feigning of protected status by the use of signs, emblems or uniforms of the United Nations. On the other hand, ruses of war are not prohibited and they are acts which are intended to mislead an adversary or cause them to act recklessly but which do not infringe on the rules of IHL and which are not perfidious (do not invite the confidence of an adversary with respect to protection under the law). Examples include, camouflage, mock operations and misinformation.
So, while a combatant can lawfully attempt to deceive the enemy by resorting to cunning stratagems, they are not allowed to create false impression of legal entitlement (on either side) to immunity from attack. The rationale being that foul play in such an instance is liable to erode respect for immunity in future cases. We can all tell, given the thin line between these two strategies of warfare (one legal and the other illegal), how hard it can be to distinguish and establish the intention, especially on the battlefield where it’s a matter of life and death, and given the fact that both means share a common ground. The limitation in the law is in the failure to provide a criteria that would permit a distinction between lawful and treacherous conduct during warfare.
The urbanization of armed conflicts has led to an increase in the use of explosive weapons, in the current war in Ukraine, we are witnessing numerous bombardments of civilian infrastructure and the population by Russian occupiers. Article 51 of the Protocol relating to the Protection of Victims of International Armed Conflicts: the civilian population enjoys general protection against danger arising from hostilities and must not be attacked. Attacks on non-military facilities are expressly prohibited.
It remains the obligation of Parties to conflicts to respect international humanitarian law, and it is their obligation to provide for the basic needs of the population under their control. Where the basic needs are not met, which is the case in most cases, all parties must allow and facilitate humanitarian relief. The gaps in adherence to IHL need to be addressed, at the moment economic sanctions from the international communities seem not to do much in deterring offenders. The capacity of national courts to prosecute national offenders and the jurisdiction of international criminal tribunals to prosecute national governments or individuals is still ineffective. I think adherence to IHL is also hindered by the thin line between illegal and illegal means and tactics of warfare which makes drawing clear distinctions complex. Ukraine’s example where civilians have taken up arms to defend the sovereignty of their country has made adherence to the principles of IHL even harder. But both parties ought to take the necessary steps to distinguish between lawful and unlawful targets so as to protect the lives of civilians who are not involved in the fighting.
By
Patricia Namakula
Director of Research and Public Relations
