Humanitarian Law

Humanitarian Law

International law makes a distinction between the laws governing the resort to war by states (jus ad bellum) and the conduct of war (jus in bello). Even though war itself is unlawful, a body of international humanitarian law is still deemed necessary to regulate the conduct of war. The laws of war apply to armed conflicts regardless of whether the use of force was itself legal or illegal.

The laws of war are intended to protect those who are vulnerable during conflict, such as civilians, POWs. The main instruments governing the laws of war are the Geneva Conventions of 1949 and their two additional protocols. While these bind those parties to the convention in their conduct of hostilities, it is generally accepted that the Geneva Conventions are customary (with the exception of the second additional protocol) and bind non signatories; in fact they even apply to non-governmental forces such as national liberation movements. The laws of war do not work on a reciprocal basis, so if your enemy violates the laws of war, this does not mean that you can also violate these rules or take measures of reprisal.

Another distinction drawn in humanitarian law is the distinction between international and non-international armed conflicts. Because international law is essentially a state-oriented system, states were unwilling to allow international law to interfere in what was thought to be part of the internal affairs of the state ie civil war and did not want to be restricted in their ability to quash rebellions etc. Therefore, in the Geneva conventions, a different body of rules applies depending on whether the conflict is international or non-international. The rules regarding international armed conflict are much more substantial and detailed than those governing internal conflicts. However, under API, wars of national liberation against colonial domination and racist regimes are classified as international armed conflict.

Internal armed conflicts are governed by Common Article 3 (which is called Common art 3 because it is contained in all 4 conventions) and is elaborated on by APII (which is not as widely ratified and not considered part of customary international law). However, it is possible for a state to agree to apply the rules governing international armed conflict to internal armed conflict thus giving greater protection to those more vulnerable. Also, foreign intervention may cause the conflict to change to being considered international in character.

Enforcement of the laws of war is easier in the case of international armed conflict because of the grave breached regime which establishes universal jurisdiction over serious breaches of the convention (ie any country can prosecute – is actually an obligation to prosecute). While it is rarely applied, the grave breaches system allows the enforcement of IHL and establishes individual criminal responsibility for violation of the laws of war. Violations of Common Article 3 on the other hand do not give rise to universal jurisdiction or individual criminal responsibility.
Enforcement and punishment for the most serious violations of the laws of war has also been made possible through the establishment of the International Criminal Tribunals and the creation of the ICC.

The ICTY and ICTR were established by the Security Council under Chapter VII to establish individual criminal responsibility for violations of humanitarian law in the former Yugoslavia and Rwanda. This use of Chapter VII powers was the first time that Tribunals had been established to find individual criminal responsibility as result of a perceived threat to international peace and security. The Tribunals have jurisdiction over slightly different crimes because of the internal nature of the Rwanda conflict, but both apply only law that is customary to avoid the issue of nullem crimen sine lege. The ICTY has jurisdiction over crimes committed in both internal and international armed conflicts including grave breaches of the Geneva Conventions which the ICTR does not include. They both have jurisdiction over Crimes Against Humanity (a concept that was first elucidated at the Nuremberg trial), however the ICTY has jurisdiction over CAH only if they are committed in an armed conflict but the ICTR removed this traditional link to armed conflict thus expanding the reach and potential of the CAH regime. Both have jurisdiction over genocide.

The ICC was created by the Rome Statute in 1998. Unlike the as hoc tribunals, the ICC is not actually part of the UN system and requires ratification by state parties. The ICC only has jurisdiction over crimes committed since its inception in 2002 and only over crimes committed after the state party concerned has ratified.
The ICC has jurisdiction over only the most serious crimes ie genocide, crimes against humanity and war crimes. It also has jurisdiction over the crime of aggression although ‘aggression’ has not yet been defined and the Court will not take jurisdiction until it has been sufficiently defined.

A situation can be referred to the ICC by a State party, the Security Council or the prosecutor can investigate proprio moto.

Unless the situation is referred by the Security Council, the ICC can only take jurisdiction:
If the state on whose territory the act occurred is party, or
If the state of the nationality of the accused is a party.

Finally, the ICC’s guiding principal of complementarity, means that the ICC will only take jurisdiction if the State party that otherwise has jurisdiction in unwilling or unable to prosecute. There are various discussions at the moment as to what this means and we will have to wait and see how it is applied in practice.