IHL has generally not been the subject of the same debates and criticisms of “cultural relativism” as international human rights. Although the modern codification of IHL in the Geneva Conventions and Additional Protocols is relatively new and of European name, the fundamental concepts are not new and the laws of war can be found in all cultures. In addition, international criminal tribunals (such as the International Criminal Tribunals for the Former Yugoslavia and Rwanda) and mixed tribunals (such as the Special Court for Sierra Leone) have contributed to broadening the scope of definitions of sexual violence and rape in conflict. They have effectively prosecuted sexual and gender-based crimes committed during armed conflicts. There is now well-established jurisprudence on gender-specific crimes. Nevertheless, there is still an urgent need to further develop gender-specific constructs in international humanitarian law. [60] Today, international humanitarian law is the only legal norm governing assistance in the context of conflict. Its rules, like all laws, must be interpreted in such a way as to take into account the reality of conflicts, and not in a way that seeks to avoid liability. Since war maintains a pattern of more or less organized and institutionalized violence (although the degree of organization varies), it is possible to identify chains of responsibility in all conflict situations. This makes it possible to start negotiations that include the application and respect of humanitarian law. Modern international humanitarian law is composed of two historical currents: ▸ Fundamental guarantees ▸ High Contracting Parties ▸ International conventions ▸ Legal status of the parties to the conflict ▸ Right to humanitarian initiative ▸ Situations and persons not explicitly covered by international humanitarian law ▸ Special agreement The principle of non-discrimination is a fundamental principle of IHL.
Adverse distinction on the basis of race, sex, nationality, religious belief or political opinion is prohibited in the treatment of prisoners of war,[48] civilians,[49] and combat personnel. [50] All protected persons are treated with equal consideration by the parties to the conflict, without distinction on the basis of race, religion, gender or political opinion. [51] Everyone affected by armed conflict has the right to his or her fundamental rights and guarantees without discrimination. [52] The prohibition of adverse distinction is also considered by the ICRC to be part of customary international law in international and non-international armed conflicts. [53] Necessity and proportionality are established principles of humanitarian law. According to IHL, a participant in war can only use the amount and type of force necessary to defeat the enemy. In addition, attacks on military property must not result in the loss of civilian lives, which is considered excessive in relation to the expected direct military advantage. [42] Commanders must take all feasible precautions to avoid civilian casualties. [43] The principle of proportionality has also been classified by the ICRC as part of customary international law in international and non-international armed conflicts. [44] A private Swiss organization, the International Committee of the Red Cross, founded by Henri Dunant in Geneva after witnessing the lack of medical care for the victims of the Battle of Solferino in 1859, played a key role in this codification and in the implementation of aid. In Solferino, Henri Dunant discovers the hidden face of the military confrontations between the great powers of the time: 40,000 dead and wounded of the two armies remain where they rest to become victims of looters on the battlefield.
In 1864, Dunant participated in the drafting of the first Geneva Convention for the Amelioration of the Lot of Wounded Soldiers and invited States to sign it at a diplomatic conference convened specifically for that purpose. The Convention proposed, inter alia, that States accept the work of a neutral and independent medical assistance committee empowered to pick up and care for wounded and sick soldiers, regardless of their nationality. During the War of 1870, the Committee extended its relief efforts to prisoners of war who were not covered by the First Convention. Thus, the provision of neutral humanitarian assistance preceded international humanitarian law and served as a basis for its subsequent codification by States. Yet even in the midst of the carnage of history, humanitarian norms have often been expressed and invoked to protect the victims of armed conflict: the wounded, the sick and the shipwrecked. These date back to antiquity. [17] Articles 1 to 12 set out the general provisions for the implementation of the Convention, i.e.: minimum guarantees for situations not expressly covered by the Convention (Article 3); the definition of protected persons (art. 4); the possibility of negotiating special agreements (art.
7); the role of the Protecting Powers or their deputies, the ICRC or any other impartial humanitarian organization (Articles 9 to 11). ▸ Customary international law ▸ Geneva Conventions and Protocols ▸ Natural, religious and positive law ▸ Respect for international humanitarian law ▸ Red Cross and Red Crescent The term international humanitarian law (IHL) refers to a particular branch of international law that concerns the “law of armed conflict” or “martial law”. It is a very old law that has been progressively established by State practice and codified by the treaties adopted by them. It seeks to regulate the conduct of hostilities, in particular by alleviating unnecessary suffering, in order to prevent the conflict from reaching a point of no return. One of the means it uses to avoid unnecessary suffering and destruction is to limit the means and methods of warfare. It also prohibits certain conduct in time of war and postulates, inter alia, the right to assist non-combatants in alleviating the suffering caused by war. The provisions of international humanitarian law relating to humanitarian assistance are discussed in the Humanitarian Principles and Humanitarian Aid section. A large number of questions on the interpretation of international humanitarian law have been submitted to international tribunals. In dealing with these issues, the objective of the courts was to allow the application of the law to specific situations different from those provided for by the authors of the Geneva Conventions of 1949. They confirmed the need to adapt the interpretation of humanitarian law to take account of changing conflict situations.
▸ Fundamental guarantees ▸ Situations and persons not explicitly covered by international humanitarian law International humanitarian law applies only to situations of armed conflict, but to all actors in an armed conflict. IHL distinguishes between international and non-international armed conflicts; For the latter, there is a much more limited range of written rules. Although State practice continues to support this distinction, it has been criticized as arbitrary and impractical given the nature of current conflicts. However, the law has evolved over the years to better cover internal armed conflicts. Gaps in the regulation of the conduct of hostilities in PA II, which regulate non-international armed conflicts, have been largely filled by customary international law. Post-conflict situations, gaps remain in the protection framework. These can lead to difficulties in providing humanitarian protection and humanitarian assistance to the population still in need. In 1868, the Russian imperial cabinet adopted the St. Petersburg Declaration, which prohibited the use of certain weapons and “established the technical limits at which the necessities of war were to give way to the needs of humanity.” It affirmed that the only legitimate objective that States should pursue during war is to weaken enemy armed forces, and that they should refrain from the use of weapons that unnecessarily aggravate the suffering of disabled men or make their death inevitable. It defines the dialectic of humanitarian law that accepts “useful suffering” on grounds of legitimate and objective military necessity, while limiting “senseless suffering” by regulating the means and methods of warfare and creating a right to aid. The Fourth Convention restructured the rules on methods of warfare and aid and defined them in a single text. It has prevented States and armies from evading responsibility for their subordinate populations, while guaranteeing the rights of impartial humanitarian organizations acting as neutral mediators to provide effective assistance and protect the rights of the most vulnerable.
These conventions recognized the dual role of the International Committee of the Red Cross, both as the guardian of humanitarian law, responsible for its interpretation and the proposal of new codifications, and as an aid organization for the protection of victims. They recognized the special union between States and private humanitarian initiatives by linking the ICRC`s statutes to the Geneva Conventions. The Geneva Law is directly inspired by the principle of humanity. It refers to those who do not participate in the conflict, as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance provided by impartial humanitarian organizations such as the ICRC. [26] This emphasis is found in the Geneva Conventions. The first laws of war were not universal, but regional. In fact, the first Chinese treaty was written by Sun Tzu in the seventh and sixth centuries BC. J.-C. Most of its principles were inspired by religion and aimed at humanizing social, political, and military relations. .