The rules of war
International humanitarian law, also known as the law of armed conflict or the law of war, is the body of rules that, in wartime, protects persons who are not or are no longer participating in the hostilities. It limits the methods and means of warfare. Its central purpose is to limit and prevent human suffering in times of armed conflict. The rules are to be observed not only by governments and their armed forces, but also by armed opposition groups and any other parties to a conflict. The four Geneva Conventions of 1949 and their three Additional Protocols of 1977 and 2005 are the principal instruments of humanitarian law. Other texts include the 1925 Geneva Protocol banning the use of gas, the 1980 Convention on Certain Conventional Weapons and the 1997 Ottawa Convention on the Prohibition of Anti-Personnel Mines.
The four Geneva Conventions of 1949 are applicable to international armed conflicts. They stipulate that civilians and people who are no longer taking an active part in the hostilities, such as wounded or captured combatants, must be spared and treated humanely. They also set out the role the ICRC plays in alleviating human suffering. In addition, Article 3 common to all four Conventions authorizes the ICRC to offer its services in the event of non-international armed conflict and accords minimum protection to the victims of such situations.
Since August 2006, 194 States are party to the Geneva Conventions. The three Additional Protocols of 1977 and 2005 supplement the Conventions. Those of 1977 aim to limit the use of violence and protect the civilian population, by strengthening the rules governing the conduct of hostilities. At the beginning of 2005, 162 States were party to Protocol I and 157 were party to Protocol II. Protocol III establishes an additional emblem, the red crystal.
Development of the law
As the nature of warfare changes, new areas of humanitarian law need to be explored and developed. Beginning with the first Geneva Convention in 1864, the ICRC has worked to improve the protection of victims by promoting the development and adoption by States of new legal standards. Its legal experts organize and participate in meetings and conferences on humanitarian themes. Through its Advisory Service on International Humanitarian Law, the ICRC also encourages States to adopt legislation to apply humanitarian law at the national level. ICRC legal experts at Geneva headquarters and in the field give technical assistance to States, for example, on legislation to prosecute war criminals and to protect the red cross, red crescent and red crystal emblems.
The ICRC also seeks ways to improve implementation of the law. In 2002, it launched a project on the reaffirmation and development of international humanitarian law. As part of the project, the ICRC is reflecting internally on a range of current and emerging issues relating to that law, as well as consulting externally on these topics.
At the request of the international community, the ICRC has recently undertaken a worldwide study on customary international humanitarian law rules. The study, completed in 2004, identifies where current recognized practice can complete written law and treaties, particularly those applicable to non-international armed conflicts. In addition, the ICRC promotes awareness of and compliance with the law (see also Preventive action, p. 41).
The ICRC’s operational activities are complementary to its legal work. Apart from providing help to populations in need, the ICRC, through its presence in the field, is in a privileged position to monitor respect for humanitarian law, to observe at close hand the problems that victims of armed conflict face in their daily lives and to initiate the development of new law.
When violations occur…
If the ICRC observes a violation of the rules of war, it makes a confidential approach to the authorities responsible for the incident. Where violations are serious, repeated and established with certainty, and when confidential representations to the authorities have failed to improve the situation, it reserves the right to take a public stance by denouncing such failure to respect humanitarian law, provided that it deems such publicity to be in the interests of those affected or threatened by the violations. Such a step is exceptional. It is not the ICRC’s task to investigate or prosecute offences. States party to the Geneva Conventions are duty bound to introduce into their national legislation provisions for the repression of violations of humanitarian law, including the prosecution or extradition of war criminals. Offenders may be arraigned either before the national courts of the different States or before an international tribunal. The 1998 Rome Statute of the International Criminal Court, which entered into force in July 2002, paved the way for the creation of an internationally recognized body to try perpetrators of war crimes who for one reason or another have escaped trial by their national judicial systems. In the Court’s rules of procedure, ICRC staff are uniquely exempt from giving evidence, for, if its staff could be called upon as witnesses in judicial procedures, the organization’s neutrality would be jeopardized, putting at risk impartial access to the victims of armed conflict.
Weapons – preventing the worst
The ICRC is closely involved in ensuring that weapons in use and under development conform to existing rules of humanitarian law.
Limits on means and methods of warfare
Two aspects of the weapons issue are of humanitarian concern. First, is a weapon indiscriminate and therefore more likely to cause civilian death and injury? And second, does it inflict more suffering than required for a given military purpose? These concerns were central to the recent worldwide campaign to ban landmines which culminated in the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, more commonly known as the Ottawa Convention.
In 2000, following the Kosovo conflict, the ICRC called for a new international agreement on other explosive remnants of war (ERW). The cause rapidly gained the support of NGOs and many governments. After formal negotiations between States party to the 1980 Convention on Certain Conventional Weapons, an international agreement was concluded which requires parties to an armed conflict to take a number of specific steps to reduce the dangers posed by ERW. The new treaty, Protocol V on Explosive Remnants of War, is an essential tool in efforts to minimize civilian deaths, injury and suffering arising from modern warfare. More work is needed, however, to raise awareness of the Protocol and to ensure that it is widely ratified and implemented by governments and armed forces.
The ICRC also concerns itself with weapons under development, whose effects have not yet been seen on the battlefield. The 1990s saw a brief but intense campaign to bring about the prohibition of blinding laser weapons, a goal achieved in 1995. Equally alarming are the voices in the scientific community that warn that the current advances in life sciences and biotechnology could be put to hostile use. The ICRC has learnt that such advances, meant to benefit humanity, could be used perversely to make more effective biological or chemical weapons. As a result, in 2002 the ICRC launched a rare public appeal to governments, military bodies and the scientific community, reminding these institutions of their legal and moral obligations to do everything possible to prevent poisoning and the deliberate spread of infectious disease as methods of warfare.
Unregulated availability of arms
Another growing concern in humanitarian circles is the unregulated proliferation of small military-style weapons. In most of the conflicts in the last decade, death and injury have resulted less from the major conventional weapons, such as missiles, tanks, aircraft and warships, than from small arms and light weapons. Anyone, even children, can operate them, as they are light and easy to carry, simple to handle and require little or no training. Unlike major weapon systems, their availability is subject to few internationally accepted norms. Even after fighting has ended on the battlefield, armed violence often persists, fuelled by the easy access to weapons. In some conflict and post-conflict situations, rapid-fire assault rifles are easier and cheaper to obtain than food. There is strong evidence to suggest that the widespread availability of military-style weapons is having a detrimental impact on respect for humanitarian law and on the delivery of assistance to the victims of war, whom that law seeks to protect. The ICRC has contributed its expertise to the rowing international discussion on this problem, highlighting the cost to civilians of the free flow of weapons and ammunition, and has urged governments to take into account the recipient’s likely respect for humanitarian law when making decisions on arms transfers.