As I prepare for this week’s Irish Red Cross IHL Conference ‘Reporters Lives on the Line’ I thought I’d address some of the most common question I comes across in my role as International Humanitarian Law Dissemination Officer with the Irish Red Cross.
So, today we look at just how does IHL limit the effects of armed conflict and are there different types of armed conflict?…
How does IHL limit the effects of armed conflict?
IHL is based around a number of key basic principles namely that a distinction must be made between combatants and civilians , a prohibition on attacking those not taking direct part in hostilities, a prohibition on the infliction of unnecessary suffering, for example exploding bullets or blinding lasers. The principle of necessity must be balance with the principle of proportionality, i.e. does the military necessity of this action outweigh the damage that will be done and lastly Martens Clause [LSC1] which essentially says that even if you are not protected by any specific rule you are protected by the dictates of humanity and the requirements of the public conscience.
The key legal instruments that we have for IHL include the four Geneva Conventions of 1949 which as mentioned above are universally ratified. Each speaks to the protections of certain groups of people, the first is concerned with the sick and wounded in the armed forces in the field, the second with the sick, wounded and shipwrecked armed forces at sea, the third with prisoners of war and the fourth with the protection of civilians. In addition to these we have Protocols Additional I and II from 1977, a wide array of weapons treaties, treaties relating to the protection of cultural property, Optional Protocol to the Convention on the Rights of the Child, Protocol Additional III, 2005, and the law is still developing.
Are there different types of armed conflict?
IHL applies to all armed conflicts, including partial or total occupation even if that occupation met with no armed resistance. Likewise, the state or states involved in the conflict do not have to recognise there is a conflict taking place for IHL to apply. Within IHL a distinction however is made between International Armed Conflicts (IAC), so conflicts that take place between two or more States, and non-international armed conflicts (NIAC) which occur on the territory of one State between either the forces of the States and a non-state organised armed group or between two or more such groups. This distinction is important because certainly as far as treaty law is concerned there are far more provisions regarding international armed conflict than non-international armed conflict. However, this is tempered to some degree by the fact that many customary international humanitarian laws have been shown to apply to NIAC, and the basic principles outlined above apply at all times. Nonetheless, some protections are not as well developed in NIAC as in IAC. One clear example is that the status of POW (prisoner of war) is not available in NIAC.
It also should be noted that a certain threshold must be reached before we can apply IHL, especially when we are talking about NIACs. The Statute of the International Criminal Court (ICC) is very clear where it states that IHL does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. However, it is difficult even in hindsight to pinpoint an exact moment when the threshold is reached and a conflict transformed from internal tensions with rioting to armed conflict. For this reason, at the ICC and the ad hoc tribunals for Rwanda and former Yugoslavia the situation in each case is taken separately to determine firstly if an armed conflict was ongoing at the time of the alleged war crime in the area where the alleged war crime is said to have occurred before then going to determine the legality or not of the action.