This paper offers recommendations to amend International Humanitarian Law (IHL) to meet the needs of contemporary warfare. In an attempt to rehash emerging and existing challenges of the Law of Armed Conflict, the author contextualizes the factors underpinning the prevalent disregard for IHL.
The History of Warfare
The nature of wars has evolved over a period, from the primitive people of the stone age who developed chariots, to horsey and cavalry formations, to the era of firearms which begun with the use of gunpowder (Bernard, 2015). It is worthy to note that warfare has always been in pursuit of political and economic gains. The 20th century, however, was characterised by aggressive and relentless cruelty of wars, due to militarisation and technological advancements. According to Keegan, the greatest lesson of the last 200 years of warfare seems to be to stop using war as a means of achieving political ends (Keegan, 1994). For Hitler, war and politics are two parts of the same coin. Certainly, the wars in Afghanistan and Iraq had political connotations. The Russian-Ukrainian war cannot be overlooked as a modern war intended to de-nazify the eastern part of Ukraine.
Evolution of IHL
The evolution of warfare has been in tandem with the history of laws, as there has always been efforts to protect sections of society, mainly women and children from the effects of wars. International Humanitarian Law (IHL), defined as a set of international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems directly arising from international and non-international armed conflicts (NIAC) , originated from the ‘law of war’ (LoW) or the ‘law of armed conflict’ (LOAC) (Alexander, 2015). The 20th century witnessed international treaties such as the 1906 Convention of the Wounded and Sick and the 1907 Hague Convention on Maritime warfare, meant to modify warfare, Maritime warfare, intended to regulate warfare, rights and safety of sufferers of armed conflicts emerged at the diplomatic conference of members of the International Committee of the Red Cross in 1864, following the grim aftermath of the battle of Solferino. The 1964 conference adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, earmarking the birth of modern International Humanitarian Law (IHL) (Wilson, 2017). In line with modifications in conflict and the expansion of protected persons, IHL has undergone several changes.
IHL is evoked during armed conflicts of an international or a non-international character. A conflict is deemed as international when it involves two or more states, wars of liberation, irrespective of a declaration of intention or recognition of same by the parties. Conversely, non-international conflicts may entail government forces fighting armed insurgents or extremist groups. Consequently, all parties in a conflict are subject to IHL, including individuals who could be held liable for grave breaches of the Geneva Convention and Additional Protocol I. Nonetheless, parties to conflict usually disregard some of these provisions.
Nature of Contemporary Warfare
Contemporary war has transitioned from military fight to the use of state-of-the-art weapons, ideological and information wars. Information warfare, for instance, is a new tool being employed by Russia against North Atlantic Treaty Organisation (NATO) and their allies. Rod Thornton articulates the reasons underpinning Russia’s successful annexation of Crimea by employing destabilizing messaging and campaigns in its navy operations (Thornton, 2015), underscoring the need for reforming IHL to meet the demands of contemporary warfare.
Highlights of Relevant Aspects of IHL
Article 2(4), which states that “All contributors shall chorus in their worldwide family members from the danger or use of force in opposition to the territorial integrity or political independence of any state, or in any other manner”. This provision ensures regard for State sovereignty, enjoining all states in the anarchic world system to at the equal time admire each other’s sovereignty.
Article 3 of the Conventions regulates both international and NIAC which often causes even worse catastrophic impacts on civilians than the former (Thornton, 2015). Although some states argued that the implementation of this provision would legitimize and justify the rights of violent non-state actors who are using force against the government. This seemingly limits States’ efforts in using force in the event of intrastate hostilities. Consequently, the Common Article 3 became a viable compromise which enjoins all parties to a NIAC to recognize and practice enlisted essential principles. It, therefore, guarantees the utility of the fundamental guidelines of humanity in the course of inner conflicts. Also, the Additional Protocols I and II solidified and enhanced its universality. Protocol I focused on the conduct of international armed conflicts while Protocol II regulates NIAC. Both Protocols seek to safeguard civilians, as such, all parties to a conflict are obligated to employ feasible measures to avoid coincidental killing of civilians and harm to civilian objects. This supports the creation of safe passages for civilians during war.
To a large extent, IHL ensures the safety of civilians, vulnerable groups, civilian objects and ex-combatants who would have otherwise been exposed to harsh effects of war or been directly targeted by warring factions. Although, it is yet to protect all and sundry due to activities of groups or individuals who continue to undermine the law, it is tipped to be among the most important laws that have improved the conduct of contemporary warfare and reduced the number of coincidental fatalities.
Challenges and Highlights of IHL that Require Revision
Inherent in the enforcement of international laws is the commitment of signatory States to cede parts of its power and ensure compliance to the law. IHL is no different from the foregoing condition. The law has mostly characterised responses to the developments and the response of the international community to war (Bothe, 2013). It has been criticised as constituting what member States agree to rather than being “independent” or compulsorily binding. Others have also argued that IHL is not progressive as it does not encompass possible alterations to the conduct of war in the future. It has been observed that the application of IHL in contemporary conflicts, particularly multi-national and NIAC, is complex given that such conflicts are often not easily perceptible. A clear illustration of this complexity was observed from the inception of the Malian crisis (Kelly, 2013). Given the intensity of the hostilities the international community was faced with a dilemma on whether to apply IHL, if it satisfies the conditions of an armed conflict, or the Human Rights Law, if it was seen to be an internal violence.
A peculiar challenge confronting the implementation of IHL is the categorization of war of liberation as an armed conflict with an international character as emphasized in the Additional Protocol I (Wilson, 2017). According to the Protocol, such armed conflicts fought within a single State should be in the exercise of right to self-determination to end an occupation, racist regime and colonial rule. However, the application of the principles of IHL for international armed conflict becomes complicated in the case of two groups (i.e., the government and the group fighting for self-determination) within a territory. In such instances, the Government of the State in question is often hesitant to acknowledge that the armed conflict which is for the purpose of self-determination is a war of liberation and accordingly, an international armed conflict (Bothe, 2013).
Furthermore, the principle of “equality of belligerents” which holds parties to a conflict equally liable, has raised concerns of responsibility. This is to avoid a situation where parties to a conflict argue that they did not initiate the war, hence, are not bound by the law of war. For instance, the Special Court for Sierra Leone and the International Criminal Tribunal for the former Yugoslavia (ICTY), a United Nations court of law that dealt with war crimes, reaffirmed the principle, noting that “many perpetrators believe that violations binding international norms can be lawfully committed, because they are fighting for a ‘just cause’ (Bothe, 2013). Further, efforts to affirm this strict division in recent years in counter terrorism operations, seem to suggest that those who violate the law are not entitled to any protection under the law.
Another prevalent challenge in the application of IHL is during non-international armed conflict which is often difficult to define. The Common Article 3 of the Geneva Conventions which is the accepted governing authority does not explicitly outline what constitutes non-international conflict (ICRC, 2020). To quote the framers of the article, “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties” (Geiss, 2010). Some analysts have argued that the above phrase creates ambiguities in characterizing such conflicts as non-international. This implies that, for a conflict to be described as non-international, it must involve hostilities between a State and a non-state entity and should also be a protracted armed conflict.
Another requisite of IHL is that the said war needs to occur in the confines of a single State (Geiss, 2010). In essence, there may be hurdles in the application of the Article if the war transforms right into a multi-national and trans-boundary armed conflict. In the case of a multi-national warfare, if the intervention of another actor (third party) takes the side of the Government, the character of the conflict is maintained and the laws guiding NIAC apply (International Commitee of the Red Cross, 2016). Conversely, if the third party takes the side of the non-State actors, the conflict turns into an international armed conflict and its inherent IHL concepts apply. However, it remains unclear what character the conflict will take if an organized group (non-state actor) of another State which is not regulated by the State in question (i.e. where the government can maintain plausible deniability of their) intervenes at the part of the insurgents.
Conclusion
To reiterate, it is evident that IHL plays a significant role in limiting the suffering emanating from international and NIAC (International Commitee of the Red Cross, 2007). However, to enhance the adaptability of the law, it must take cognisance of the aforementioned challenges. It could also be periodically reviewed to ensure that it meets the needs of contemporary warfare within and between States.
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- Quote paper
- Richlyn Siaw (Author), 2022, International Humanitarian Law (IHL) and Contemporary Warfare. Challenges and Recommendations, Munich, GRIN Verlag, https://www.grin.com/document/1263974
