A CRITICAL ASSESSMENT OF THE ROLE OF INTERNATIONAL HUMANITARIAN LAW IN MODERN WARFARE. BY VUSUMUZI M.

I BHEBHE

This essay seeks to interrogate the role of International Humanitarian Law (IHL) in modern warfare. The essay will in limine outline a brief historical background of IHL so as to make it easier for one to understand the purpose why such law developed and establish whether it has morphed to accommodate new roles. The essay will inevitably interrogate the question of efficacy of such law in times of warfare as well as assessing whether such a law is able to meet its objectives as well as its contemporary challenges. IHL is therefore relevant in that it serves mainly two types of functions that is on the one hand a regulatory function and on the other a protective function. The regulatory function shall be discussed taking into account how IHL regulates the conduct of parties in armed conflicts whether through well established principles or through limiting the means and methods that can be used or employed by the parties participating in hostilities. The protective function will discuss the persons as well as the objects that are protected by IHL, the essay will also tackle the question of effectiveness of the principles and rules of IHL whether they have been able to achieve their intended ends. Dugard states that IHL is also known as jus in bello and it is the law that govern the waging of war and treatment of combatants and civilians in time of war.1 He further states that it determines the rights and duties of belligerents in the conduct of their military operations and limits the choice of the means of doing harm.2 Kalshoven and Zegveld are of the view that IHL aims to mitigate the human suffering caused by the absurd savagery of total war.3 IHLs roots can be traced from the Swiss citizen from Geneva, Henry Dunant who, after passing by Solferino on a business trip just as a battle was ending, witnessed the suffering of wounded soldiers left to die untended.4 With the help of local women he did what he could to care for them. After returning to Geneva, Dunant wrote A Memory of Solferino, in which he set out ideas which marked the
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J Dugard International Law: A South African perspective page 526. Ibid. 3 F Kalshoven & L Zegveld Constraints on the waging of war: An Introduction to International Humanitarian Law page 14. 4 DR Thomas B G A study guide to IHL ICRC. www.icrc.org study guides of IHL pg 13 accessed 20-08-12 A Memory of Solferino lies as the sole historical document leading the the foundation of ICRC, the works of Dunant remain the only source evidencing the history of the First Geneva Convention as well.

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beginning of humanitarian considerations in armed conflicts.5 This leads therefore to the fact that IHL has been developed to basically serve a regulatory function and a protective function as will be discussed infra.6

When launching an attack, parties to an armed conflict are under an obligation to distinguish between civilian objects and military objectives.7 Attacks may only be directed against military objectives and may not be directed against civilian objects.8 This regulation or reflection of a principle of distinction clearly shows that the functions of IHL overlap for example, in the present circumstances; parties are not allowed to launch an attack against civilian objects which has an effect of preserving or protecting the civilian populations property. 9 Further the principle of distinction also entails that parties to a conflict are under an obligation to distinguish between civilians and combatants and to direct their attacks only against combatants. The challenges of IHL with regards to this principle is that in most circumstances combatants use civilians as a shields from attack and so there are very few circumstances where there is total separation. The problem is even aggravated by the fact that IHL is not only about humanitarian considerations but it is about balancing these humanitarian considerations with military necessity so civilians might end up being attacked by the belligerents.10 The most important aspect to be drawn however from the principle of distinction is that it regulates the conduct of parties in an armed conflict whilst at the same time according protection to civilians and civilian objects.

IHL does not only offer protection to civilians and their object but those who assist in armed conflicts are also protected. Medical personnel exclusively assigned to medical duties are also protected from attack by the parties participating in an armed conflict. They can only lose their protection if they decide to directly participate in hostilities.11 Humanitarian relief personnel as well as objects used for humanitarian relief are also protected in terms of Article 71 (2) of Additional Protocol I to the Geneva Conventions. This is meant to afford those that assist the

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Ibid. International Law Review the Red Cross A Guide to the Legal Review of new weapons, Means and Methods of warfare: Measures to implement Article 36 of Additional Protocol I of 1977 Vol 88 No 864 December 2006 p 931. 7 Article 48 and 52 Additional Protocol I to the Geneva Conventions. 8 Ibid. 9 Ibid. 10 J Dugard International Law: A South African perspective page 527. 11 J Henckaerts & L Doswald-Beck Customary international Humanitarian Law vol 1: Rules page 79.

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casualties in any armed conflict to do their work without fear. These provisions also serve a regulatory function in that the parties participating in hostilities are not permitted to launch attacks against the above mentioned persons and objects.

The IHL principles of proportionality and precaution in attack also help in regulating the conduct of parties in an armed conflict. The principle of proportionality provided for in terms of Article 51 (5) (b) of Additional Protocol I entails that launching an attack which may be expected to cause incidental loss of life, injury to civilians, damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited. The purpose of this provision is firstly to regulate the conduct of belligerents to use force that is proportional to the target and also to protect civilians and their objects. The principle of precaution in attack entails a party taking feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, it includes even verifying the target before launching an attack.12 This is calculated to limit reckless launching of attacks which may kill civilians as well as damage civilian objects.

IHL regulates the advent of new weapons, methods as well as means of modern warfare. The right of combatants to choose their means and methods is not unlimited in modern armed conflict.13 This means that the use of means and methods of warfare which are of a nature to cause unnecessary injury and suffering is prohibited.14 This is further stipulated in terms of Article 36 of the First Additional Protocol to the Geneva Conventions which provides that in the invention of new weapons, means or methods of warfare State parties are under an obligation to avoid weapons, methods or means which would violate IHL. The aim of Article 36 supra is to prevent the use of weapons that would violate international law in all circumstances and to impose restrictions on the use of weapons that would violate international law in some circumstances by determining their lawfulness before they are developed, acquired or otherwise incorporated into a States arsenal.15 Article 36 however does not specify how a determination of
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Articles 57 (1) and 57 (2) (a) (ii) Additional Protocol I to the Geneva Conventions. International Law Review the Red Cross A Guide to the Legal Review of new weapons, Means and Methods of warfare: Measures to implement Article 36 of Additional Protocol I of 1977 Vol 88 No 864 December 2006 p 931. 14 J Henckaerts & L Doswald-Beck Customary international Humanitarian Law vol 1: Rules p 244 Rule 70. 15 International Review of the Red Cross A Guide to the Legal Review of new weapons, Means and Methods of warfare: Measures to implement Article 36 of Additional Protocol I of 1977 Vol 88 No 864 December 2006 p933.

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the legality of weapons means and methods of warfare is to be carried out. 16 The following weapons have been cited in practice as causing unnecessary suffering: lances or spears with a barbed head, serrated-edged bayonets, expanding bullets, and explosive bullets, biological and chemical weapons.17 There are however challenges relating to the inadequacy of IHL especially with regards to new technologies that have entered the modern battlefield such as cyber warfare, remote controlled weapon systems such as drones, automated weapons and autonomous systems such as combat robots.18 There is therefore need to develop IHL so as to be able to adequately protect those that will not be directly taking part in hostilities. IHL further goes on to prohibit some specific methods of warfare which include the prohibition to deny a quarter, destruction and seizure of the enemys property as well as attacking persons who are recognized as hors de combat.19 Ordering that no quarter will be given, threatening an adversary therewith or conducting hostilities on this basis is prohibited in terms of Article 40 of the Additional Protocol I to the Geneva Conventions. The duty to grant a quarter is a basic rule that prohibits attacking a person recognized as hors de combat in combat situations on the battlefield.20 This rule is in practice particularly relevant for commanders. Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is anyone who is in the power of an adverse party, anyone who is defenseless because of wounds or sickness or anyone who clearly expresses an intention to surrender.21 The parties to the conflict are however permitted to seize military equipment belonging to an adverse party as war booty. 22 The destruction or seizure of property of an adversary is prohibited unless required by military necessity.23 This is also a clear example of how IHL both regulates the conduct of parties in modern armed conflict as well as protecting persons and their property. A clearer example to that effect is the prohibition against use of starvation as a method of warfare.24 At this juncture it is then critical to assess the efficacy or inefficacy thereof of IHL basing on the regulatory and protective functions discussed supra vis a vis modern armed conflicts. The
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Ibid. J Henckaerts & L Doswald-Beck Customary international Humanitarian Law vol 1: Rules p243-4. 18 ICRC 31st International Conference of the Red Cross and the Red Crescent 31 IC/11/5.1.2 page 36. 19 J Henckaerts & L Doswald-Beck Customary international Humanitarian Law vol 1: Rules page 161. 20 Ibid. 21 Additional Protocol I to the Geneva Conventions, Article 41 (1). 22 J Henckaerts & L Doswald-Beck Customary international Humanitarian Law vol 1: Rules Rule 49. 23 Ibid Rule 50 page 175. 24 Ibid Rule 53 page 186.

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International Committee of the Red Cross (ICRC) at the international conference of the Red Cross and Red Crescent reminded the assembled delegates that the main cause of suffering during armed conflicts and of violations of IHL remains the failure to implement the existing norms rather than a lack of rules or their inadequacy.25 Article 80 of Additional Protocol I to the Geneva Conventions states that parties to an armed conflict must issue orders and instructions to ensure that these rules of IHL are obeyed and must supervise their implementation. Implementation of the rules of IHL has been aided by the setting up of ad hoc Criminal Tribunals for the former Yugoslavia and Rwanda set up by the United Nations Security Council as well as the International Criminal Court.26 International Criminal law and its application by the international courts and tribunals is playing an increasingly important part in the interpretation and enforcement of IHL and in individual criminal liability for war crimes as well as crimes against humanity and genocide committed during armed conflicts.27 The only major challenge with regards to International Criminal Law is that a number of influential states and some states currently involved in armed conflicts have not ratified the Rome Statute of the International Criminal Court.28 In summation, IHL was developed to mitigate the effects of armed conflicts; this has remained its main purpose and has subsequently led to its principles of customary international humanitarian law which bind even those states that have not yet ratified the Geneva Conventions of 1949 and the three Additional Protocols. IHL has a dual function that is a regulatory function and a protective function. All these principles are centered on limiting the grave consequences of armed conflicts.

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International Law Review of the Red Cross vol 91 No 874 June 2009. Ibid page 284. 27 Ibid. 28 Ibid.

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BIBLIOGRAPHY: 1. International Law Review of the Red Cross vol 91 No 874 June 2009 ICRC: Geneva.

2. J Henckaerts & L Doswald-Beck Customary international Humanitarian Law vol 1: Rules ICRC: Cambridge. 3. J Dugard (2001) International Law: A South African perspective 2(ed) Juta and Co Ltd. 4. International Review of the Red Cross A Guide to the Legal Review of new weapons, Means and Methods of warfare: Measures to implement Article 36 of Additional Protocol I of 1977 Vol 88 No 864 December 2006. 5. F Kalshoven & L Zegveld (2001) Constraints on the waging of war: An Introduction to International Humanitarian Law ICRC: South Africa. vusumuzibhebhe@yahoo.com

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