GUJARAT NATIONAL LAW UNIVERSITY
PROJECT TOPIC: INTERNATIONAL HUMANITARIAN LAW AND WAR, A CRITICAL OVERVIEW
Submitted to: Dr Vikas Gandhi, Faculty of law
By: 10B144
“The welfare of the people in particular has always been the alibi of tyrants.”
~Albert Camus
Before we deliberate on the subject of International humanitarian law, let us look at the three words separately. The word „International‟ is used to describe anything that involves two or more nations. „Humanitarian‟ means having the interests and welfare of mankind at
heart. „Law‟ is the set of rules that bind all those who are subject to it. Thus the term „International humanitarian law‟ would, in all effectiveness,
stand for the law that promotes or protects the interests of humankind in the global scenario. Here lies the first paradox. The definition of International humanitarian law as given by the International Committee of the Red Cross, International humanitarian law is a, “Set of rules which seek, for human itarian reasons, to limit the effects of
armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States –
treaties or conventions – , in customary rules, which consist of State practise considered by them as legally binding, and in general principles. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.1” Armed conflict, to say the least, has been a part of human civilisation since the dawn of civilisation itself. International humanitarian law has been in place for the last one and a half centuries since the First Geneva Convention of 1864 and since then we have had three more Geneva Conventions, along with its three additional amendment protocols. It is interesting to observe how we have remained the blood thirsty animals we say we once were, and now use fancy words and legal treaties to justify our actions. The question that crops up in the midst of this discussion, repeatedly, is why, instead of making laws that would help prevent war, we have to make laws on what or what not to do while engaged in one? „Jus ad bellum‟ and „Jus in bello‟ are the two legal aspects of a war.
The former is the set of criteria that is necessary to be fulfilled by a nation to declare war on another. The latter is the set of rules to be followed while engaged in war with one or more nations. International humanitarian law, or specifically the Geneva Conventions, are essentially a set of jus in Bello.
1
http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf
The United Nations Charter prohibits the use of force as a means of settlement of disputes between the signatories. It is plain in the words of Article 2 (4) of the UN Charter, which are: “All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
This is an absolutely binding clause on all the signatories and restricts all the nations from using any force at all in any manner which would be detrimental to the others‟ established territory or sovereignty, or
inconsistent with the Purposes of the United Nations, which are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends. It is clear that the Purposes are to do away with armed conflicts and use of force between nations, even in the settlement of disputes which would have had, in the past, led to certain aggression. International humanitarian law thus becomes a precursor to the fact that history has failed to teach us anything at all about our past mistakes. The arguments may seem opinionated, but let us think with a clear mind and take a look at the global scenario. It has been almost 70 years since World War II, the most horrific display of military prowess in the history of mankind. The United Nations Organisation was born out of its ashes. The world sighed in relief. But in a span of less than 10 years, two of the largest military superpowers were at loggerheads yet again, leading to the long drawn Cold War. Since then many wars and battles have been fought, countless lives have been lost, many a tear shed, and international humanitarian law has “evolved”. Yet, somehow, mankind has not found in itself the most basic
and humanitarian sense, to not engage in an armed battle with anyone who dared think differently. Are we that far past beyond any hope or redemption? It is certainly a fearful thought, when all the nations in the world decide together that war is not only acceptable, but an almost certain means to settle any dispute that might arise, and thus create a set of rules on how to carry about the process. A more „rational‟ being will argue that the rules of war are necessary and the thought that war has to be done
away with is indeed impractical. In the light of recent events one may certainly think that to be true, but let us then look at the ways humanitarian law has failed to live up to its purpose of making the act of war, a bit more peaceful. The United States‟ invasion of Iraq is well etched in our memories, which
took place a decade ago in 2003. The United States provided the rationale for the war, in well guised words, referring to the UN Resolution 1441, saying that Iraq was harbouring weapons of mass destruction, which were a threat to international peace and security. A full scale invasive attack was launched at the behest of then president, George W. Bush, Jr. This attack was criticised all over the world by various international communities. The then Secretary-General of the United Nations, Mr Kofi Annan came out with the public statement that the war on Iraq was illegal and that it was in contravention of the UN Charter.2 The US Government further rationalised their action by stating that Saddam Hussein was supporting terrorist groups such as the Al-Qaeda and Taliban, though no evidence was found of the same in reality3. The international community at large criticised the US Government‟s actions and the steps that it took
without any reasonable cause to launch the massive operation leading to the loss of more than 180,000 lives and the wastage of more than $2 trillion.4 The utter failure of both international and international humanitarian law in this case has cast shadows of doubt in every thinking human being regarding the point of having laws, if they are going to be broken at the will and fancy of the most powerful nation. 2
http://news.bbc.co.uk/2/hi/middle_east/3661134.stm http://irrationallyinformed.com/pdfcollection/20040729_Kerr_Report.pdf 4 http://www.nydailynews.com/news/national/new-study-shows-shocking-cost-iraq-wararticle-1.1290568 3
It will not be going too far to say that the United Nations Organisation is funded mainly by the US Government and that gives them a clear monopoly over all international matters. The Security Council was either completely powerless, or did not care, about this matter, which enable the United States to carry out such a heinous operation. Needless to say a number of established laws were violated in the war in Iraq, with soldiers of both sides manhandling both civilians and other soldiers in clear violation of the laid down rules of armed combat. More than 70% of the casualties in the war were civilians. An earlier incident, much diminished from our memories is the Yugoslav Wars which ended last decade in the year 1999, where the nations of Bosnia, Croatia, Slovenia and Kosovo fought each other for independence and self-determination. NATO forces promptly stepped in, trying to „resolve‟ the situation by starting numerous air -strikes in the war affected
regions, only leading to more casualties and with the usage of radioactive shells containing depleted uranium, they started what was called a “low intensity nuclear war”. Amnesty International, the Human Rights
Organisation accused NATO of breaching several laws and committing several war crimes, charges which NATO blatantly dismissed. The bombing of the Radio Television Serbia‟s headquarters was a direct attack on a civilian object, which was completely overlooked by the ones who are supposed to implement the laws governing wars. Thirty percent of the victims of NATO‟s attacks were children, NATO launched its attacks without the approval of the Security Council or any UN bodies, went on to justify the attacks by citing humanitarian grounds, saying that it was necessary to intervene due to the circumstances in place. Yet, no
international regulating body batted an eyelid, and the NATO went on to dismiss the claims that they had indeed aggravated the situation, instead of helping it in any way as “bogus”. This decision has almost paved a way
for other States or international military organisations to take action unilaterally under so called „humanitarian grounds‟, without having to
worry about legal consequences, if they have the necessary prowess in the international scenario. In addition to war crimes that were committed by NATO, in the Bosnian Genocide Case5 (Bosnia and Herzegovina v. Serbia and Montenegro) the state of Serbia was also accused of genocide, which the International Court of Justice refused to take into account saying that, though there was more than enough evidence to show that there had been various war crimes and crimes against humanity in the form of widespread killings, mass rapes, torture, deportation to camps, the ICJ did not have jurisdiction to take such incidents into consideration as the case in question dealt "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term".6 One can only look on in open mouthed wonder after such a statement from the highest international judicial authority. What can one do when the authorities wilfully do not act? Is this the aim of international law? To be entangled in the technicalities and frivolities of the law, while ignoring, or choosing to ignore the bigger picture? Renowned scholar and the first president of the ICTY, Antonio Cassese criticised the ICJ‟s judgement, saying that the Court had laid down an 5
http://www.icjcij.org/cijwww/cdocket/cbhy/cbhyjudgments/cbhy_cjudgment_20070226/bhy_judgment. pdf 6 http://www.icjcij.org/docket/index.php?sum=667&code=bhy&p1=3&p2=2&case=91&k=f4&p3=5
unrealistically high standard of proof for finding Serbia to be guilty of genocides. The court further went on to say that Serbia had not taken any measure to check the incidents of genocides and had done nothing to punish the perpetrators. This is a laughable statement and looks to be a sort of consolation prize for Bosnia, by way of which the Court has tried to pacify the massacred territory by saying, yes you did suffer, we all acknowledge that fact, but there‟s nothing anyone can do about it.
The two cases mentioned above show how much the regime of humanitarian law is politicised and in the hands of a few powerful nations who take action against other states at their own discretion, if they feel that they are inconvenienced by the goings-on, without any cause or proper justification. The United Nations Organisation, the International Court of Justice and all other international regulating bodies stand by and watch helplessly as the body and soul of international humanitarian law is ripped to shreds. It is of utmost importance that we start looking at peace measures, instead of trying to develop what or what might not be necessary in the case of armed conflicts. The problems arising between states should not be allowed to reach the point where an armed conflict breaks out between them. Disputes should be resolved either internally, or with the help of external authorities in an amicable and non-violent manner. It is a tad ironical that we allow for the legal killing of human beings, but do not want to do so in a “cruel” or “inhuman” manner. How does one
justify such laws? The Geneva Conventions, which are the rules of how to go about during war time, asks a soldier to treat his/her enemy in a
humane and dignified manner. Is it really possible for a human who is exposed to irrational killing of his/her fellow beings, in the midst of a raging battle to really keep calm and think of how to treat the enemy right? Who are we fooling, but ourselves? Maybe, I am inexperienced and that is why I don‟t understand that war is necessary, but is it really? What is the
meaning of being civilised then? A different approach should be adopted in this day and age. Instead of signing treaties and conventions regulating certain aspects of armed conflicts, the international community should focus more on signing and then enforcing peace agreements. Such agreements may be signed between states and enforced by third party states who will help in mediating between these two states when and if a problem comes to the fore. Peace agreements attempt to end violent conflict by designing frameworks that aim to accommodate the competing demand of the conflict‟s contenders.7 It has to be realised that for the sake of the human race, we cannot afford to continue the way we are, and that it will lead to our own demise, sooner than later. With weapons and technology reaching unprecedented levels, there are weapons which have the power to reduce the entire planet to ashes, or kill all the life on this planet in one swift stroke. The current system of laws that are in place has been made by the rules for them to rule and not for the subjects to live in peace. Where is the concept of sovereignty if a few superpowers are allowed to dictate the world order as they please? 7
Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria, Oxford University Press (2008)
It is my firm opinion that I am not the only one who wants to live in a peaceful world where humans don‟t kill each other ironically, in the name
of humanity. The time has come for us to realise that the age old custom of picking up our arms and killing anyone who stands in our way is not the solution to our problems, and they cannot and never will be so. There have been several peace treaties, most notable the Kellogg-Briand pact, the London Charter, and most famously the UN Charter among others. Many have been, and continue to remain honoured by the party states, whereas some have been disregarded and manipulated in the name of international peace and justice.
“Never think that war, no matter how necessary, nor how justified, is not a crime.”
~ Ernest Hemingway
BIBLIOGRAPHY
Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacifactoria, Oxford University Press, 2008
V.S. Mani, Handbook of International Humanitarian Law in South Asia, Oxford University Press, 2007 REFRENCES
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