International humanitarian law
Also referred to as law of armed conflict or law of war, this branch of international law comprises a set of rules aimed at protecting victims in times of war, namely persons (civilians) not directly taking part or no longer directly taking part (e.g. wounded soldiers or prisoners of war) in the hostilities. Civil goods are also subject to protection.
IHL also comprises a second set of rules restricting the means and methods of warfare, the aim being to prevent, limit or prohibit the use of indiscriminate arms or combat methods against soldiers or civilians or cause suffering beyond what is strictly necessary from the military point of view.
Sources of IHL
Like any branch of international law, its sources include:
- Conventions like the Geneva Conventions of 12 August 1949, concluded to protect victims of war, and the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, adopted in Geneva on 10 October 1980);
- customs (like the Regulations annexed to Convention (IV) respecting the Laws and Customs of War on Land, adopted in The Hague on 18 October 1907);
- case law (see the case law developed by international criminal tribunals like the International Criminal Tribunal for the Former Yugoslavia (ICTFY); and
- doctrines (the abundance of scientific literature about IHL, starting with the Commentaries on the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 by the International Committee of the Red Cross (ICRC).
Belgium is party to almost all Conventions governing IHL and has signed the latest ones, which are currently undergoing ratification.
IHL and human rights
Humanitarian law must not be confused with human rights.
Humanitarian law only applies to armed conflicts, whereas human rights apply at all times, although sovereign governments may suspend the rules governing some human rights “in time of public emergency which threatens the life of the nation”.
At the same time, both these branches of international law have some points in common, just as they overlap with other legal domains, like refugee law.
In fact, Article 3 in the 1949 Geneva Conventions, Article 75 of the First Additional Protocol and Article 4 of the Second Additional Protocol to these Conventions set out the fundamental rights of individuals.
These figure among the human rights for which there may be no derogations from the terms (primarily) of the UN's International Covenant on Civil and Political Rights (1966).
This apparent redundancy in international law has already proved useful, having
enabled the prosecution of serious violations of the law of armed conflict – linked to the failure to respect certain human rights – not just in national courts, but also in international criminal tribunals.
International humanitarian law links nations, first and foremost, and it is they who bear the prime responsibility for respecting it and ensuring its application. In this connection, Belgium set up an Interministerial Commission on Humanitarian Law (CIDH) with a view to favouring the adoption in Belgium of measures suitable for the proper implementation of IHL.
Some ‘non-state actors’ are also involved, mainly non-governmental armed groups involved in non-international armed conflicts.
The official law set out in treaties about this type of conflict is limited, even though it is far more widespread today than its international counterpart.
An emerging doctrine of resorting to customary humanitarian law, followed in certain respects by case law, aims to extend applicable law to cover such conflicts. However, the difficulty remains of convincing the respective Member States and armed groups of the need to respect this ‘expanded’ law. Indeed, it is already laborious enough to encourage (or force) them to respect official law, this being one of the main tasks assigned to the International Committee of the Red Cross (ICRC).
IHL binds individual nations, but what about military alliances and international organisations? In fact it is up to their Member States, when participating in military operations, to ensure that the rules of engagement adopted for these operations enable them to meet their IHL obligations.
Furthermore, at the initiative of their Member States, of which Belgium is one, the international organisations in question are developing actions designed to help promote IHL, encourage compliance with it and extend its reach.
For instance, in 2005 the European Union adopted Guidelines on the promotion of international humanitarian law.
Moreover, every second year the UN General Assembly examines an item on its agenda entitled Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict which is the subject of a report by the UN secretary-general. The UN General Assembly then adopts a follow-up resolution.
The ICRC, 'guardian’ of IHL
The International Committee of the Red Cross has initiated all the developments in the law governing the protection of victims of armed conflicts (also known as the Law of Geneva).
Soon after the ICRC’s establishment in 1863, it already initiated the adoption of the Geneva Convention of 22 August 1864 in a bid to improve the treatment of soldiers wounded during military campaigns.
In 1977 it also secured the reaffirmation and development of the Law of The Hague relating to the conduct of hostilities. At the same time, it reignited the debate on conventional weapons that may cause unnecessary suffering or have indiscriminate effects. Since 1980, several conventions designed to limit the use of some of these weapons, if not actually ban them altogether, have been adopted.
The role of the ICRC as the ‘guardian of IHL’is officially recognised in the Statutes of the International Red Cross and Red Crescent Movement, which have been adopted not only by the members of the Movement, but also by the State Parties to the Geneva Conventions.
In addition, the Geneva Conventions of 1949 assign various tasks to the ICRC, including:
- Visiting prisoners;
- conducting aid operations;
- reuniting the members of dispersed families;
- other similar humanitarian activities.
The Statutes of the International Red Cross and Red Crescent Movement encourage the ICRC to conduct similar actions in situations of country-internal violence that are not covered by the Geneva Conventions.
The ICRC and Belgium
Belgium actively supports the actions of the ICRC by fully respecting its neutrality, independence and impartiality.
Accordingly, in Belgium the ICRC, a sui generis organisation subject to international public and private law, benefits from a headquarters agreement facilitating its relations with international organisations with their headquarters in Belgium (including the EU and NATO).
The ICRC is also one of Belgian development Cooperation’s international ‘partner’ organisations.
Belgium belongs to the ICRC’s Donor Support Group along with 18 other ‘major donors’ (as in 2009).
Belgium has always been actively involved in all the events which the ICRC has invited it to attend, starting with the establishment of the Red Cross of Belgium in 1864 right up to the present day. It also plays an active role in the international conferences held every four years by the Red Cross and Red Crescent to support the Red Cross Movement, especially in its attempts to apply its principles and promote and develop the IHL.
Links on this site:
- Development “Constantly evolving IHL”
- Enforcement and compliance
- Interministerial Commission on Humanitarian Law
- International Committee of the Red Cross
- Belgian Research Centre for Military Law and the Law of War - only available in French or Dutch, with a very full page of links, including links (click on “Liens utiles” or “Nuttige links”) to academic institutions and publications:
- Red Cross of (French-speaking) Belgium
Flemish Red Cross