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International Humanitarian Law and its Challenges - Abhinav Agrawal

Updated: Nov 29, 2020



International Humanitarian Law (IHL) is a part of International Law that seeks to curb the aftermaths of armed conflict. The law largely safeguards the fragile countries which do not take part in hostilities such as civilians, the wounded, unwilling and abandoned, or apprehended warriors. On the other hand, the law also governs the norms and procedures of warfare for the countries who take part in hostilities by prohibiting the weapons or wiles of such a nature that cause superfluous devastation and unwarranted hardships. This law is also known as the law of armed conflicts or the law(s) of war. (1)


Use of Force

According to the customary law and the charter of the United Nation, if one party uses the force against the other it must have the legitimate reason for doing so. The party using the force must have to confirm that the force is used to maintain or restore peace and harmony or it is used in pursuant of self-defense against an armed attack. But International Humanitarian Law applies independently without the questions of legitimacy. It binds on all the parties to the armed conflict equally without considering the legality to the resort of the force. In other words, Every party in a conflict has the same rights and responsibilities towards one other without concerning the lawfulness of the use of force.

The justification for the above separation between the application of International Humanitarian law and the United Nation charter governing the use of force is for both humanitarian and practical reasons. On the one hand, the parties to the conflict will always differ with one another on whose cause is just and who resorted to the force lawfully. On the other hand, the victims of the conflict are in the necessity of the same protection. (2)

International and Non-International Armed Conflicts

IHL classifies two categories of armed conflicts one is international and the other is non-international armed conflict.

According to Article 2 to the four 1949 Geneva Conventions provides that International Armed Conflict ‘apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’. In simple terms, whenever there is a resort to hostile armed forces between the two states there is an armed conflict. In such a case, the intensity or threshold of such force is very low. For e.g. a single border confrontation between the armed forces of two states or the capture of an individual soldier may lead to international armed conflict. Moreover, the act of a private person does not constitute an international armed conflict unless such a person works on behalf of the state. (3)

On the other hand, common Article 3 of the Geneva Convention talks about non-international armed conflict, which takes place when there is a conflict between Government authorities and an organized armed group within a state. For constituting the non-international armed conflict there must be the fulfillment of two criteria (a) the armed violence must last for a long time with great intensity of violence. (b) there must be the existence of organized groups. For e.g. confrontation between state forces. (4)

However, there is a difference between internal disturbance and non-international armed conflict. Non-international armed conflict requires certain criteria to be fulfilled which differs from internal disturbances, riots, terrorism, etc. Therefore, banditry, disorganized or short-lived insurrections, or terrorist activities are thereby excluded from the applicability of the 1949 Geneva Conventions and Humanitarian law does not attract these aspects. (5)

Challenges in Classification

Certain complex situations have challenged the classification of armed conflicts. They neither come under international armed conflicts between two states nor under non-international armed conflicts between government armed forces and armed groups within a state.

There are no provisions for a situation of using the force by the state against a non-state actor on the territory of another state raises a question whether it comes under international armed conflict or there must be the existence of an armed group of both the state to constitute it an international armed conflict. Moreover, we all are aware of the fact that foreign interventions in various forms and degrees are common which creates hurdles to tackle the situation efficiently and effectively.

There is also a situation in which both international and non-international armed rebellion coexist. In 2011, there was an international armed conflict between a number of NATO member states against the State of Libya under the Gadhafi administration alongside a distinct non-international armed conflict between the administration and armed opposition groups taking place in Libya. However, The Rule of Law in Armed Conflict Project (RULAC) does not make separate provisions for these types of dichotomous armed conflicts.

There is a need to control the proxy forces. Sometimes the state in addition to using its own armed forces control the local armed groups acting on another state territory by financing, training, and supporting those groups. This situation seems like a non-international armed conflict as it is between the territorial state and the local armed groups. However, in actuality, this situation is an international armed conflict between the territorial state and the state that supports the armed groups as the latter has overall control over the local armed group of that territory. (6)


Conclusion

It is to be noted that the purpose of IHL is not to prevent war between the countries but it aims to limit the sufferings caused after the war. Due to certain complexities in a legal framework, the inadequacy of the distinction between the international and non-international frameworks is still a question. There are only two recognized classifications. Certain explanatory illustrations are required to elucidate each armed conflict. But none of them carries a legal significance. There is a need for a proper framework and to introduce new laws that help to tackle these situations in a satisfactory manner and to serve humanity in a decent way.

References

  1. http://www.rulac.org/legal-framework/international-humanitarian-law#collapse2accord

  2. http://www.rulac.org/legal-framework/use-of-force

  3. http://www.rulac.org/classification/international-armed-conflict#collapse2accord

  4. http://www.rulac.org/classification/non-international-armed-conflicts#collapse1accord

  5. http://www.rulac.org/classification#collapse1accord

  6. http://www.rulac.org/classification/contemporary-challenges-for-classification#collapse4accord


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