AUTHOR’S NAME: Souvik Podder
UNIVERSITY - Bankura University
INTRODUCTION
International Humanitarian Law (IHL) also known as Law of armed Conflicts and Law of War, is a set of rules and principles that aim to resolve the armed conflicts and mitigate the effect of hostilities. The primary goal of IHL is to protect individuals who are not participating in war and restrict some means and methods of warfare. The International Humanitarian Law can be Traced back to the 19thcentury, and it has evolved in the changing nature of the armed conflicts and in the need to address the Humanitarian consequence of Warfare. The Main purpose of Humanitarian law was to protect the fundamental rights of the individual who are not participating in war.
The key Principles of “Humanitarian Law” are:
- Distinction parties to the combat must distinguish between Civilian object and military Object, Civilian and Combatants.
- Using Proportionate force that to the Military objective and not to the Civilian that shouldn’t harm civilians.
- Parties to the Combat must take precaution so that civilians are not harmed, avoiding placement of military objects near densely populated areas and providing alert when attacking or attacked by Enemy.
- Parties who are not Actively participating in war like civilians, aid workers and wonders, enjoy protection and should not be targeted.
- Certain weapons and Tactics are prohibited for Unnecessary suffering and damages.
EVOLUTION OF INTERNATIONAL HUMANITARIAN LAW:
IHL traces its roots to ancient civilizations, but its formal codification gained momentum in the mid-19th century with the establishment of the Red Cross and the adoption of the Geneva Conventions. Today, IHL consists of treaties, customary laws, and principles that govern the conduct of armed conflicts and seek to safeguard individuals who are not taking part in hostilities.
CASE LAW 1: “THE TADIĆ CASE (1999) ICTY APPEALS CHAMBER DECISION”
The International Criminal Tribunal for the Former Yugoslavia (ICTY) played a pivotal role in shaping modern IHL jurisprudence. In the Tadić case, the Appeals Chamber clarified that serious violations of the laws and customs of war, including genocide, can constitute war crimes and fall under the jurisdiction of international criminal tribunals. This decision set an important precedent for subsequent international criminal prosecutions.
RECENT DEVELOPMENTS IN INTERNATIONAL HUMANITARIAN LAW
- CYBER WARFARE:
The rise of cyber warfare has challenged traditional notions of armed conflict. The Tallinn Manual, a non-binding academic study, addresses the application of existing IHL to cyber operations. The case of “Georgia v. Russia (2011)” highlighted the potential application of IHL to cyber-attacks, emphasizing the need to adapt legal frameworks to evolving technological landscapes.
- AUTONOMOUS WEAPONS SYSTEMS:
The advent of “Autonomous Weapons Systems (AWS)” raises ethical and legal concerns. The Campaign to Stop Killer Robots advocates for a preemptive ban on fully autonomous weapons. While no specific case law directly addresses AWS, ongoing discussions in international forums, such as the Convention on “Certain Conventional Weapons (CCW)”, demonstrate the global community’s efforts to regulate these emerging technologies.
- PROTECTION OF CULTURAL HERITAGE:
Recent conflicts have witnessed the deliberate targeting and destruction of cultural heritage sites, leading to calls for enhanced protection under IHL. The “Al Mahdi case (2016)” at the “International Criminal Court (ICC)” marked the first prosecution for the war crime of intentionally directing attacks against cultural heritage. This underscored the significance of preserving cultural treasures during armed conflicts.
- NON-STATE ARMED GROUPS:
The involvement of non-state armed groups in conflicts poses challenges to the traditional state-centric framework of IHL. “The Hamdan v. Rumsfeld (2006)” case before the U.S. Supreme Court addressed the legal status of detainees held by the U.S. at Guantanamo Bay. The ruling emphasized that Common Article 3 of the Geneva Conventions applied to armed conflicts involving non-state actors, reinforcing their protection under IHL.
CHALLENGES TO INTERNATIONAL HUMANITARIAN LAW
- ENFORCEMENT AND ACCOUNTABILITY:
One of the persistent challenges is ensuring accountability for violations of IHL. The lack of a centralized enforcement mechanism often hampers the prosecution of perpetrators. The establishment of international criminal tribunals, such as the ICC and the “International Criminal Tribunal for Rwanda (ICTR)”, aims to address this challenge but faces practical limitations.
- ARMED CONFLICTS WITH ASYMMETRIC ACTORS:
Traditional IHL frameworks were developed with the assumption of conflicts between nation-states. Asymmetric conflicts involving state and non-state actors challenge these frameworks. The legal status and rights of non-state actors, as exemplified in cases like ‘Hamdan v. Rumsfeld’, continue to be areas of legal complexity.
- TECHNOLOGICAL ADVANCEMENTS:
The rapid development of technologies, including cyber warfare and autonomous weapons, necessitates continuous adaptation of IHL. The absence of clear rules and norms regarding the use of these technologies poses ethical and legal dilemmas, requiring the international community to proactively address these challenges.
- PROTECTION OF CIVILIANS:
Despite the explicit provisions of IHL to protect civilians, conflicts continue to witness significant civilian casualties. The case of “Al-Jedda v. United Kingdom (2011)” before the “European Court of Human Rights (ECHR)” highlighted the challenges in balancing security concerns with the imperative to protect civilians during armed conflicts.
POSITIVE DEVELOPMENTS AND FUTURE PROSPECTS
- ADVANCEMENTS IN INTERNATIONAL CRIMINAL JUSTICE:
The establishment of the ICC in 2002 marked a significant step in enhancing international criminal justice. While challenges persist, the ICC has played a crucial role in prosecuting individuals for war crimes, crimes against humanity, and genocide, contributing to the development of IHL.
- GROWING RECOGNITION OF THE ROLE OF VICTIMS:
Recent developments emphasize the role of victims in international criminal proceedings. The case of “Lubanga v. Prosecutor (2012)” at the ICC highlighted the active participation of victims in the legal process, signaling a shift towards a more victim-centric approach in international criminal justice.
- ENHANCED PROTECTIONS FOR CULTURAL HERITAGE:
The Al Mahdi case demonstrated a growing acknowledgment of the importance of cultural heritage protection. Initiatives such as the International Alliance for the Protection of Heritage in Conflict Areas further underscore the global commitment to safeguarding cultural treasures during armed conflicts.
- STRENGTHENED INTERNATIONAL COOPERATION:
International forums, such as the CCW and the United Nations, serve as platforms for states to discuss and negotiate new norms and rules to address emerging challenges. The ongoing discussions on autonomous weapons and the adoption of the “Treaty on the Prohibition of Nuclear Weapons” in 2017 exemplify international efforts to strengthen legal frameworks.
CONCLUSION
International Humanitarian Law remains a dynamic and evolving field, responding to the changing nature of armed conflicts and the challenges posed by technological advancements. As demonstrated by the discussed case laws and recent developments, the global community recognizes the imperative to adapt IHL to ensure its relevance and effectiveness. Challenges persist, but positive developments, including advancements in international criminal justice and growing recognition of the rights of victims, offer hope for the future. The continued engagement of states, international organizations, legal scholars, and civil society will be instrumental in shaping the trajectory of IHL, ensuring that it effectively addresses the complex realities of contemporary armed.