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International humanitarian law

Try this new interactive online course on international humanitarian law!: 'Humanity in War'


Introduction
Rights at Stake
International and Regional Instruments of Protection
Advocacy, Educational and Training Materials
Other Resources


Introduction

International humanitarian law is the law of armed conflict or law of war and their effects. The goal of international humanitarian law is to limit the effects of war on people and property and to protect particularly vulnerable persons.

States have always been limited in the ways in which they conduct armed conflicts, from the adherence to national laws and bilateral treaties, to the observance of time-honored customary rules. However, throughout history these limitations on warfare varied greatly among conflicts and were ultimately dependant on time, place, and the countries involved. Not until the 19th century was there a successfully effort to create a set of internationally recognized laws governing the conduct and treatment of persons in warfare.

In the mid-1850s, Henri Dunant - founder of the International Red Cross - helped champion the first universally applicable codification of international humanitarian law: the Geneva Convention of 1864. From these roots, international humanitarian law evolved over the course of a century and a half. The Hague Conventions of 1899 and 1904 limited the means by which belligerent states could conduct warfare.

Many of the international treaties on armed conflict were made in response to the many new methods of warfare. World War I (1914-1918) witnessed the first large-scale use of poison, aerial bombardments and capture of prisoners of war. World War II (1939-1945) saw civilians and military personnel killed in equal numbers.

The Charter of the United Nations (1945) stipulates that the threat or use of force against other states is unlawful, except in the case of self-desfense. Following World War II, the Geneva Conventions of 1949, as well as its two Additional Protocols of 1977, further limited the means of warfare and provided protections to non-combatants civilians, and prisoners of war. In the aftermath of the atrocities of the Holocaust, the Genocide Convention of 1948 outlawed acts that were carried out with the intention of destroying a particular group. In addition to these conventions, international humanitarian law has been developed and refined through several statutes and precedents laid down by international tribunals set up to try war criminals, as well as advisory opinions the International Court of Justice.



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Rights at Stake

Humanitarian law is the branch of public international law that comprises the rules, which, in times of armed conflict, seek to (i) protect persons who are not or are no longer taking part in the hostilities, (ii) restrict the methods and means of warfare employed, and (iii) resolve matters of humanitarian concern resulting from war.

The term "humanitarian" is often used in everyday language in a very broad sense, and can be confused with the term "human rights." Although both are concerned with the protection of the individual, the two bodies of law apply to different circumstances and possess slightly different objectives. The main distinction between the two bodies of law is that humanitarian law applies to situations of armed conflict, while human rights protect the individual in times of both war and peace. Humanitarian law aims to limit the suffering caused by war by regulating the way in which military operations are conducted.

Fundamental principles of humanitarian law

International humanitarian law aims to limit the suffering caused by war by forcing parties engaged in a conflict to:

  • engage in limited methods and means of warfare;

     

  • differentiate between civilian population and combatants, and work to spare civilian population and property;

     

  • abstain from harming or killing an adversary who surrenders or who can no longer take part in the fighting;

     

  • abstain from physically or mentally torturing or performing cruel punishments on adversaries.

     

    Types of armed conflict

    International armed conflicts are conflicts between states. The four 1949 Geneva Conventions and Protocol I deal extensively with the humanitarian issues raised by such conflicts. The whole body of law on prisoners of war, their status and their treatment is geared to wars between States (Third Convention). The Fourth Convention states inter alia the rights and duties of an occupying power, i.e. a state whose armed forces control part or all of the territory of another state. Protocol I deals exclusively with international armed conflicts.

    Under Protocol I of 8 June 1977, wars of national liberation must also be treated as conflicts of an international character. A war of national liberation is a conflict in which a people is fighting against a colonial power, in the exercise of its right of self- determination. Whereas the concept of the right of self-determination is today well accepted by the international community, the conclusions to be drawn from that right for the purposes of humanitarian law and, in particular, its application to specific conflict situations are still somewhat controversial.

    The majority of today's armed conflicts take place within the territory of a state: they are conflicts of a non-international character. A common feature of many such internal armed conflicts is the intervention of armed forces of another state, supporting the government or the insurgents.

    The substantive rules of humanitarian law governing non-international armed conflicts are much simpler than their counterparts governing international conflicts. They are derived from one main source, namely article 3 common to the four Geneva Conventions of 1949, which obliges the parties to an internal conflict to respect some basic principles of humanitarian behaviour already mentioned above. Article 3 is binding not only on governments but also on insurgents, without, however, conferring any special status upon them.

    Additional Protocol II of 1977 supplements Article 3 common to the Geneva Conventions with a number of more specific provisions. This is a welcome contribution to the strengthening of humanitarian protection in situations of internal armed conflict. Protocol II has, however, a narrower scope of application than common Article 3. It applies only if the insurgent party controls part of the national territory.



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    International and Regional Instruments for Protection

    International legal instruments take the form of a treaty (also called agreement, convention, protocol) which may be binding on the contracting states. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" to that effect by the representatives of states. There are various means by which a state expresses its consent to be bound by a treaty. The most common are ratification or accession. A new treaty is "ratified" by those states who have negotiated the instrument. A state which has not participated in the negotiations may, at a later stage, "accede" to the treaty. The treaty enters into force when a pre-determined number of states have ratified or acceded to the treaty.

    When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others, a specific law may be required to give an international treaty, although ratified or acceded to, the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, amend existing laws or introduce new legislation in order for the treaty to be fully effective on the national territory.

    Many international treaties have a mechanism to monitor the implementation of the treaty.

    Many provisions of the four Geneva Conventions, the two Protocols, and the Hague Conventions of 1899 and 1907 are broadly accepted as restating customary international humanitarian law applicable to all countries. Humanitarian law applies specifically to armed conflict situations, which would ordinarily qualify as "public emergencies". (Weissbrodt)

    Unlike human rights treaties, which often have a monitoring body to which individuals and states can submit complaints, humanitarian law relies much more on informal procedures.

    The Geneva Conventions and the Additional Protocols require the States party to adopt a number of measures in order to assure compliance with these treaties. Some of these measures have to be taken in peacetime, others in the course of an armed conflict. In this short overview, only three such obligations will be mentioned, as examples:

    - Instructions to and training of the armed forces: the complex set of obligations arising out of the Conventions and the Protocols must be translated into a language which is clearly understandable to those who have to comply with the rules, in particular the members of armed forces, according to their ranks and their functions. Good manuals on humanitarian law play a decisive part in effectively spreading knowledge of that law among military personnel. Rules which are not understood by or remain unknown to those who have to respect them will not have much effect.

    - Domestic legislation on implementation: Many provisions of the Geneva Conventions and of their Additional Protocols imperatively require each State Party to enact laws and issue other regulations to guarantee full implementation of its international obligations. This holds particularly true for the obligation to make grave breaches of international humanitarian law (commonly called "war crimes") crimes under domestic law. In the same way, misuse of the red cross or the red crescent distinctive emblem must be prosecuted under domestic law.

    - Prosecution of persons who have committed grave breaches of international humanitarian law: Such persons must be prosecuted by any State party under whose authority they find themselves. That State may, however, extradite the suspect to another State Party which is willing to prosecute him. Individuals accused of violating humanitarian law may also be tried by an international criminal court. The United Nations Security Council has established two such courts: the Tribunals for the former Yugoslavia and for Rwanda. On 17 July 1998, a Diplomatic Conference convened by the United Nations in Rome adopted the Statute of the International Criminal Court.

     

    Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) (article 44, 70)
    This treaty protects refugees during war. Refugees cannot be treated as "enemy aliens".

    Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) (1977) (article 73)
    "Persons who, before the beginning of hostilities, were considered as stateless persons or refugees ... shall be protected persons..., in all circumstances and without any adverse distinction."



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    Advocacy, Educational and Training Materials

    For advocates

    Code of Conduct for Conflict Transformation Work (International Alert)
    This short guide is designed to act as an ethical framework for transformation work and outlines the necessary principles for reaching constructive resolution to conflict. Major topics discussed in this guide include human rights in the context of conflict transformation work, impartiality, and establishing peaceful partnerships. This guide is appropriate for use in the grassroots, academic, research, religious or military sectors.

    Victims' Guide to the International Criminal Court (Reporters sans frontièrs)
    This guide explains the new International Criminal Court (ICC), what its jurisdiction is and how to bring a case before it, how victims should address a complaint, as well as describing the challenges and obstacles it faces. The guide includes chapters on: crimes that fall within the jurisdiction of the Court (crimes of aggression, crime of genocide, crimes against humanity and war crimes); crimes that particularly target women and children; the participation of victims in trials; the protection and safety of victims and witnesses; and reparations.

    For armed forces

    Code of Conduct of the Armed and Security Forces of Mali (Ministry of Defense of the Republic of Mali)
    A practical manual for soldiers and military officers with main stipulations in international human rights law, the Constitution of Mali and international humanitarian law relating to the role of the military.

    For humanitarian workers

    IASC Training Modules on Internally Displaced Persons (Norwegian Refugee Council/Office of the UN High Commissioner for Human Rights)
    Comprehensive training package on internally displaced persons. This online training program consists of several modules which, used alone or together, discuss the protection and assistance of internally displaced persons guaranteed by international law. The following modules are currently available on-line: A Definition of Internally Displaced Persons; Legal Origins and International Obligations; Protection from Displacement; Return, Resettlement, and Reintegration; and Recipients as Resources: Community Based Programming.

    United Nations Blue Book (by Martin Knotzer, Roland Ulbert and Harald Wurth)
    This handbook incorporates basic principles of criminal justice, human rights and humanitarian law for UN civilian peacekeeping missions. It provides a compact overview of relevant international standards and norms for field monitors in criminal justice.


    For journalists

    Human Rights Reporting for Journalists (Institute for War and Peace Reporting)
    This module provides background and resources for journalists covering human rights issues and matters concerning international humanitarian law. It also provides practical guidelines for journalists investigating human rights abuses. The module is divided into four parts: history, current frameworks, practical tips for journalists and online resources.

    Practical Guide for Journalists (Reporters sans frontièrs)
    This handbook is intended to provide practical guidelines for journalists conducting investigations into violations of freedom of expression and freedom of the press. It includes chapters on the basic documents on the principle of press freedom, reference documents on professional ethics, guidelines for journalists who investigate human rights violations, procedures for protecting journalists; guidelines for writing reports on investigations; and relations with International Committee of the Red Cross and non-governmental organisations defending human rights and press freedom.

    Reporting Human Rights and Humanitarian Stories: a Journalist's Handbook (by Jo-An Velin)
    This handbook aims to support journalists who report stories with human rights or humanitarian components. It includes chapters on international human rights law and international humanitarian law; topical chapters (disasters and war; migrants and refugees; minorities and indigenous/tribal peoples; women and children); country profiles with basic statistical data and a thesaurus.

    For educators

    Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict (ICRC)
    These guidelines are a summary of the existing applicable international rules which must be known and respected by members of the armed forces.



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    Other Resources

  • Courses and trainings on humanitarian law

    Crimes of War: What the Public Should Know - Educator's Guide

    HREA e-learning course "Armed Conflict, Human Rights and Humanitarian Law"

    HREA e-course "Humanity in War: Introduction to Humanitarian Law"

     

     

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    Humanity in War: Introduction to Humanitarian Law

    International Humanitarian Law (Foundation Course)

    Armed Conflict, Human Rights and Humanitarian Law

    Children in War and Armed Conflicts

    Gender and Humanitarian Action

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    Key terms

    crimes against humanity - a crime against humanity consists of acts of persecution or any large scale atrocities against a body of people, as being the criminal offence above all others

    colateral damage - unintentional damage or incidental damage affecting facilities, equipment or personnel, occurring as a result of military actions directed against targeted enemy forces or facilities. Such damage can occur to friendly, neutral, and even enemy forces

    crimes against peace - refers to the act of military invasion as a war crime, specifically referring to starting or waging war against the integrity, independence, or sovereignty of a territory or state, or else a military violation of relevant international treaties, agreements or legally binding assurances

    genocide - the mass killing of a group of people any of the following acts committed with intent to destroy, in whole or in part, a national ethnic, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group

    internal armed conflicts - an internal armed conflict as a conflict "not of an international character" and taking place within the territory of a High Contracting State

    non-combatants - a military and legal term describing civilians not engaged in combat. It also includes persons, such as medical personnel and chaplains (who are regular soldiers but are protected because of their function). It is also distinguished from unprotected persons: people who are fighting but are not members of a regular armed force and who therefore do not enjoy the full protections of the Geneva Conventions.

    war crimes - crimes committed during a war in violation of international conventions intended to protect civilian populations and prisoners of war. These crimes are "subject to statutes of limitations", and thus cannot be pursued more than twenty years after having been perpetrated.

    "the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives", Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I), Article 48

    Historical dates

    1959 - Henri Dunant witnesses the casualties of the War of Italian Unification

    1863 - A five-member committee, including Henri Dunant, founds the International Committee for Relief to the Wounded, soon to be named the International Red Cross/Red Crescent

    1864 - Adoption of the Geneva on the condition of the wounded in armies in the filed

    1899 - Adoption of The Hague Convention on laws of war on land and on maritime warfare

    1914-1918 - Almost 9 million soldiers die on the battlefields of World War I)

    1925 - Geneva Protocol prohibits use of poisonous gasses and of bacteriological methods of warfare

    1929 - Geneva Conventions include rules for treatment of prisoners of war

    The first draft of this guide was developed by Stephanie Carnes.

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