An Introduction to International humanitarian law

-Narayan Bahadur Khadka, Advocate/ Nepal Law campus

The international humanitarian law is a branch of international law. International law can be divided into various types i.e. the Law of Peace, the Law of Sea, The law of Diplomatic Relations, and Law of war, which deal with the sectoral area of international law.

The IHL is a body of rules that are binding for the parties of the conflict in the time of war. IHC deals with the victims of war as well. Further, it aims to balance between military necessary and Humanity. Previously. IHL was known as Law of armed conflicts. It is also called as Red Cross Law in the sense that IHL was the creation of International Committee of Red Cross of Geneva.

IHL seeks to mitigate the effects of war. For this end, firstly, it limits the choice of means and methods of conducting military operations; secondly it wants to protect the victims of war i.e. wounded and sick, prisoners of war, children, women and civilians.

The Law of war also is to be divided into two categories. The first is Jus ad bellum, in the modern times- rules governing the use of force. The charter of UN prohibits the state from using force against another state except in the situation of Right of self-defense and collective self-defense, under Article 51 of the charter. Similarly, chapter 7 of the U.N. charter has given the power to the Security Council to take action(s) against the Aggressor State. These laws are known as Jus ad bellum under International Law. The second is Jus in bellow that regulates the facts of the armed conflicts. It does not concern about the matter whether the war was legal or illegal. The preamble to additional protocols I express this central premise in the following words.

"Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this protocol must be fully applied in all circumstances to all person who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes exposed by or attributed to the parties to the conflict"

IHL is connected with Jus in Bellow. As stated, it has no concern with the legality of the war some times, it must be distinguished from the Law of Arms control. Humanitarian law limits the right of the parties to the conflict to use certain kinds of weapons or munitions, and in some cases even prohibits such use. Accordingly, the use of poisonous gases is absolutely prohibited because the effects are not acceptable. These prohibitions stand on humanitarian grounds so the parties to the conflicts should follow such laws under all circumstances. The arms control law is grounded on disarmament agreements providing for the reduction and elimination of weapons.

Not only this, Humanitarian Law also must be distinguished with the Human Rights Law. But it is a difficult task to distinct these to phenomena. So far as applicability is concerned, Human rights laws are applicable in the situation of peace and war as well. Unlikely, humanitarian Laws are applicable only in the time of war.

Four Geneva Conventions dated 12, August 1949 and two additional Protocols to the Geneva conventions are major sources of IHL. The Hague Law in other words Hague Regulations of 1899 and 1907 also stand as the sources of Humanitarian Law.

According to Article 12 of First Geneva Convention members of the armed forces and other persons who are wounded and sick shall be respected and protected in all circumstances. Further, they shall be treated humanely and cared by the parties to the conflict in whose power they may be, without any adverse distinction based on sex, race, nationality, religion, political opinions, or any other similar criteria. Similarly, they shall not be murdered or exterminated, subjected to torture or to biological experiments.

The Third Geneva Conventions is relative to the treatment of prisoners of war.

According to Article 13 of the Third Geneva Convention Prisoners of war must be treated humanly at all times. Any unlawful act or omission by the Detaining power causing death or seriously endangering the health of prisoners of war in its custody is prohibited and if such act occur, will be regarded as a serious breach of present convention. Prisoners of war are entitled to respect for their persons and their honor in all circumstances.

Fourth Geneva Convention is related to the protection of the civilians. According to the convention civilians would not be the objects of attack. The convention further prohibits the use of civilians as a shield to protect certain areas or installations, usually of military importance, from enemy attack.

Above mentioned four Geneva conventions were adopted on 50 years ago in the diplomatic conference held in Geneva. Likely, two additional protocols were also adopted on 10 June 1977. Nepal was not the participant of that conference so later on Nepal also acceded to those conventions on 7 February 1964. However, Nepal has not yet adopted the two additional protocols.