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INTERNATIONAL HUMANITARIAN LAW

PROJECT WORK
ON

INTERNATIONAL HUMANITARIAN LAW AND


PROTECTION OF CIVILAINSCONTEMPORARY ISSUES

By:
VAIBHAV YADAV
Roll no 11LLB064

ABSTRACT

The international Humanitarian Law guarantees protection of human rights from the effects of
armed conflicts and other violent situations and hence, the protection of civilians has been its main
concern for the past six decades. The paper in order to study the need for protection of civilians and
related issues also identifies the beneficiaries of such protection extending to those trying to help
the victims in particular medical units and humanitarian assistance, providing them with essentials
such as food, clothes, and shelter. Article 50 of the Additional Protocol I to the Geneva Conventions,
1977 defines a civilian as any person who does not belong to one of the categories of persons
involved in an armed conflict of either national or international nature respectively and Article 51
further protects civilians against dangers arising from such military operations. Even though
several protective measures are taken to protect civilians, they still account for a high proportion
or the victims in most contemporary armed conflicts either because of the unintended result of
the fighting or because they were deliberately targeted by the combatants and therefore, the need
for the research.

The paper will examine how the International humanitarian Law sets up an extensive effort to
protect civilians who are victims in an armed conflict along with the variety of threats to their
persons and property which are direct violations of human rights. It will bring to light the
challenges faced in ensuring the necessary protection to civilians during armed conflicts and other
violent situations that run in harmony with the IHL. It will focus on how parties to an armed
conflict implement their obligations under the IHL and on the basis of experiences gathered from
recent conflicts, the role of peacekeeping forces, international military and humanitarian actors so
as to reduce increasing civilian participation and restoration of their rights to free and fair trial.
Along with highlighting the issues pertaining to the protection of civilians that rise in an armed
conflict or any asymmetrical warfare situation, the paper will also be an attempt to point out
suggestive measures to deal with them.

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INTRODUCTION

International Humanitarian Law (IHL) is a set of rules formulated for the purpose of limiting the
effects of armed conflicts and various other violent situations on persons who are not a part of it and
yet form the worst affected of the lot. The foregoing has been the objective of the law since decades but
in light of events taking place recently, the protection of civilians has become the utmost area of concern
and a shared objective between the international humanitarian community and the international
military along with peacekeeping actors. The beneficiaries of the law include persons who arc not or
are no longer participating in the hostilities including peacekeepers and military personnel caught up
in the process where the protection of the civilians is the primary concern.
Civilians as defined under International Committee or the Red Cross (ICRC) are, "For the purposes of the
principle of distinction in international armed conflict, all persons who are neither members of the armed farces of
a party to the conflict nor participants in a leve en masse are civilians and therefore, entitled to protection against
direct attack unless and for such time as they take a direct pan in hostilities." Moreover, attack on a civilian
population is a requisite to constitute the crime of Crime against Humanity under Article 7 of the
International Criminal Court Statute. In the case of Fofana and Kandewa, the accused were charged
with two counts of crime against humanity, that is, murder and inhumane acts against civilians. The Trial
Chamber had perceived the meaning of attacks 'directed against' a civilian population making the
civilian population as requiring that the civilian population must be seen as the primary target of the
attacks.1
International Humanitarian Law prohibits indiscriminate attacks that do not or cannot distinguish
between civilian and military object. It guarantees protection of human rights in situations of armed
conflict. The definition covers two traditional branches of International Humanitarian law, that is, the
Law of Hague and the Law of Geneva. 2
As per Article 51 of Additional Protocol 1, the civilian population and individual civilians shall enjoy
general protection against dangers arising from military operations.
As per Article 8 of the International Criminal Court Statute that defines War crimes as serious
breaches of international humanitarian law that are perpetrated in the context of either an international or
1 Fofana and Kandewa SCSI-04-14-T
2 Hans-Peter Garner, International Humanitarian Law-, Hans Haug, 504
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an internal armed conflict. It can be conducted only during in light of a war. This article is divided into
four parts that states that a War Crimes occurs when:

Grave Breaches of the four Geneva Conventions take place. These are linked with the provisions of
the four Geneva Conventions in an international armed conflict where a perpetrator willfully kills, tortures
or causes bodily injury to a person.3

Serious violations of the law of war in an international armed conflict where the perpetrator uses
prohibited means and methods of warfare that includes intentionally directing attacks against the civilian
population or civilian objects.

Serious violations of article 3 common to the four Geneva Conventions in armed conflicts not of an
international character includes violence to life and person, in particular murder of all kinds, cruel
treatment, etc.4 It provides judicial protection if these acts am committed against persons taking no
active part in hostilities, including members of armed forces who have laid down dick arms.5

Serious violations of international humanitarian law in armed conflicts not of an international


character in the territory of a State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups.
Therefore, whenever a crime is committed it leads to the violation of certain human rights.
Nonetheless, the courts try establishing that the attack was directed towards a civilian population and that
they were the primary object of the attack. The challenges relating to the redressal of such violations as figured
out from previous field experiences and further suggestive measures for improvement of such schemes are
thus, matters to be taken into consideration.

3 Art. 49 and 50, Geneva Convention I


4 Common Article 3
5 Article 8(2)(c)(1)-(4)
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FIELD EXPERIENCES THROUGH THE YEARS


As early as in 1991, crises relating to such humanitarian issues were considered in the United
Nations Security Council Resolutions explicitly by employing military action and the maintenance
of international peace and security stressed upon. In the atrocious war of Bosnia and Herzegovina (19921995), crimes like that of genocide forced action from the UN Protection Force and realisation by
the Security Council of its duty to prevent such crimes which lead to the establishment of
resolution enforcing North Atlantic Treaty Organization (NATO). The US-led invasion in Somalia
(1992/1993) on the call for humanitarian assistance expanded operation of the UN Peacekeeping forces
and brought to light the dire need for observance of humanitarian norms. Rwanda (1994) suffered due to
the inefficiency of the peacekeeping forces in their response to genocide after which the Council
resolved to take to all necessary means to achieve the humanitarian objectives 6 . Sierra Leone
(1999/2000) faced the task of ensuring effective implementation of the Lome Peace Agreement of 7
July 1999 that was to end the long civil war and which ultimately led to the resolution of February
2000 that gave authority to the UN Mission to take the necessary action regarding an enlarged range
of tasks that included a provision "to facilitate the free flow of people, goods and humanitarian
assistance along specified thoroughfares".7
Thus, as a lesson from the lint of events, measures to ensure implementation have been carved out
time to time that seek to ensure to the victims protection of humanitarian norms for the protection
of rights.

6 United Nations Swain,. Council: Resolution 1296 (On The Protection Of Civilians in Armed Conflict)
7 SC Res. 1289 adopted under Chapter VII
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MEASURES FOR IMPLEMENTATION


The IHL makes a purposeful deliberation with regard to preventive measures that should be taken to win
compliance to the law which include: 8
1. Spreading awareness regarding the rights of people and remedies available to them by
interpreting to them relevant texts
2. Setting up training camps for preparing personnel to efficiently deal with violent situations
3. Adoption of legislative and statutory provisions that address the issue.

4. Other measures laid down for implementation that cover prevention, control and repression that
impose duty upon states to ensure protection of humanitarian law as given by the
International Combine of the Red Cross include:

Procedures for enquiry

Constitution of International Fact-Finding Commission

Interpretation of legal provisions and application of procedures accordingly

Cooperation with the United Nations

Employment of diplomatic efforts and media to help implementation

All these and the legal provisions in the four conventions especially the Geneva Convention
and the Protocols provide for enough framework for dealing with the crises and issues along with
the ICRC as the guardian and promoter of the International Humanitarian Law that monitors and
evaluates the progress and implementation. But in the recent times, due to technological and other
advancements and violations, the risks and challenges relating to ensuring protection of
humanitarian norms have become more acute and press upon the need for their identification and
action in this context.

CHALLENGES AND RELATED RISKS


8 International Humanitarian Law, International Committee of the Red Cross
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The purpose of the international humanitarian law, being to protect thee innocent yet affected
victims of various violent situations, is in itself a Herculean task, to deal with which has been the
cause heavily in force since the last decade due to increasing instances of such conflicts and thereby
rolling numbers of victims as well.
The victims in an armed conflict are faced with a variety of threats to their persons and property,
which are of such grave magnitude owing to the cadre of crimes involved including genocide, attacks
on humanitarian personnel and targeting of civilians which are instances of direct repudiation of
principles of humanity. Not only these, problems with the peacekeepers themselves like
politicization and inefficient implementation of their restoration plans to pursue humanitarian
action add to the prevalent difficulties of the process. The key problems in the area which need to be
addressed are as follows:
1. The mandates formed by the Security Council for peacekeepers are not well planned enough to
consider the nature of threats to civilians which implies the need for better structures for working on
the findings to provide substantial basis for designing of mandates and resolutions.
2. The Secretariat and the peacekeeping forces arc not clear with the Councils idea of the protection
of civilians and hence arise the problems in the interpretation and following up of the mandates by
identifying specific tasks to be performed, thus rendering them ineffective.
3. There is prevailing confusion with respect to the intent of the Council itself due to loopholes in
policy making, guides for effecting them and reference to the capabilities of the peacekeepers and
available resources in carrying out the operations..
4. Lacunas in policy making and further planning directly affects the role of the peacekeeping
missions and their effectiveness in the task of protecting civilians through their day-to-day
operations. Policies wore found to be lacking due to:

Lack of realistic and wide Strategies

Incompetent leadership skills

Insufficient resources and structural requirements

Absence of efficient information providers and analysts

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These problems pose as challenges in the process of restoration of human rights of the victims, a better
understanding of which provides a clearer idea of the requisite changes and additional efforts that arc
needed to address the issues at hand.
CHALLENGES IN CASE OF CONTEMPORARY ARMED CONFLICTS
Not only these but increasing complexities in the conflicts posts one of the biggest challenges for the 111L
since this has a bearing on the conduct of the military forces and the use of force by authorities to curb
conflicts_ The scope of protection of the MI. is a matter of concern here because of the primary affected
parties being the civilians. Such other challenges relating to contemporary armed conflicts as identified by
the ICRC include:
1. The new range of technology that provide potential weapons for mass destruction that have
found stage in wars such as drones that arc being used frequently in armed conflicts these
days, the impacts on the introduction of which are unforeseeable.
2. The presence of hostilities and non-state armed groups which operate specifically in
populated areas against the forces of the governments thus, exposing civilians to utmost
threats.
3. The misuse of available conventional weapons by the deviants which is also a result of lax
regulations with regard to arms and ammunitions in the affected states and their possession with
persons that violate IHL.
4. Newer challenges in terms of non-international armed conflicts especially include the
decision of terming such rebels as 'terrorism', considering that they cause continued
conflation in public domain, as they have no incentive to comply with the customs of war.
Thus, in contemporary armed conflicts, the aim of providing the protection of WI- is
hindered by many obstacles and humanitarian access to the civilians is the need.

RISKS AS A RESULT OF SUCH VIOLENT SITUATIONS


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It cannot be denied that armed conflicts and other violent situations have long lasting
repercussions and leave their mark as permanent blemishes and symbols of crooked
approaches of people for they result in large scale destruction not only to persons, properties and
nations as a whole but the magnitude of some of them like those of nuclear attacks permanently
impair generations to come.
The related risks with respect to dealing with the effects of such situations include
participation of civilians in armed groups and support to hostilities due to losses suffered by them
and their suppression to the governments dealing with rebel groups. the foreseeable and
substantive risks include:
1. Abuses by the government forces and other allied military forces due to failure to
discriminate between civilians and targets leading to unintended violation of
humanitarian law.
2. Harassment of Internally displaced groups of people by the government forces due to difficulty
in identification and further torture and ill treatment as a result acting as a driver for
civilians to join the rebels.
3.Unreasonable restrictions on freedoms of speech and expression and peaceful assembly
imposed by the governments on the civilians that are generally construed as oppression by
them, thus building opposition to the governments by right defenders and community
leaders.
4.Threats to national integrity due to large-scale chaos and inability to conduct livelihood
activities by the civilians that may result in failure if governments further worsening the
situations.
Not only these, but numerous other risks arise daily as a result of these armed conflicts with
developments in destructive capacities of weapons and building rage among the rebels due to
unfulfilled demands that they bear due to which the civilians suffer unprecedented. Such risks spell
true daily in crane or the other parts or the world and which urges the need for appreciating and
defining proper roles of peace keeping missions and other institutions and organizations working
with the same motive which is discussed further.

ROLE OF PEACEKEEPING FORCES

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As mentioned earlier, the challenges met and the posed risks can be remedied by clearly defining
and enhancing the role of peace keeping forces in order to effectively fight the effects of such
violent situations and ensure a better tomorrow for the affected persons. The importance of these
is fluffier elaborated.

The Security Council's role is to maintain international security including protection of civilians
in an armed conflict It was made explicit by the United Nation Security Council that
peacekeeping is a temporary solution, but it can help to make a State take on its responsibility
protect civilians be legislating law and reforming security sector. 9 The council clearly stated that
though States bear the primary responsibility for the protection of their civilians, the UNSC
would be just acting as a benefactor and providing them with sufficient aid. The role of
peacekeeping units has changed with time and need. Earlier, its primary function was to provide
traditional peacekeeping, that is, to monitor an agreement between two parties towards a 'multidimensional' mission whose tasks includes anything from supporting elections to protecting
civilians. Since the past few years, international organizations have added peacekeeping missions as an
important mandate. The first mission provided with this explicit mandate language, the UN
peacekeeping operations in Sierra Leone was authorized to afford protection to civilians under
imminent threat of physical violence. Article-8 of the International Criminal Court Statute also includes
peacekeeping forces under the ambit of protected persons. In the case of Prosecutor v. Karadzic and
Mladic, the ICTY Tribunal charged the accused for taking civilians as hostages that also included UN
peacekeeper.
International organizations only aim to encourage the participants in armed conflicts to respect human
rights and humanitarian law. In dealing with human rights violations, these international
Organizations rely principally upon the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights. There are five reasons why International
Organizations have found norms of humanitarian law to provide a useful additional legal
foundation for their concerns. Firstly, 165 countries have ratified Geneva Conventions while the
ICCPR has been ratified by 85-nations. 1 0 Secondly, some principles of international humanitarian law
9 UNSC Roolution 1894, Para 3

10 International Committee of the Rod Cross (1986), as updated to 31 December 1986 by the International Committee of the Red Cross

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are specific provisions; thirdly, humanitarian law applies specifically to situations of armed
conflicts which violate the customary international law, fourthly, most of the times military and law
enforcement officials often do not take international human rights law seriously but they do
consider it to be worthy of respect and lastly, Humanitarian law covers violations in both
governments and armed opposition groups, whereas, international human rights law deals principally
with the responsibilities of governments.
The role of many international organizations varies from situation to situation. There primarily focus
is upon human rights violations and seek to persuade governments to fulfill their human rights or
humanitarian law obligation. The organizations involved in peacekeeping missions have the authority
to deploy missions capable of implementing protection of civilians' mandate by providing adequate
military, police and civilian staff The Security Council requests all peacekeeping missions to
systematically collect, aggregate and analyze data on protection issues that included all grave,
inhumane acts to which the civilians were subjected to.
The biggest challenge faced by the peacekeeping units is that all missions rely upon the
cooperation with the host government. 11 These units that are also known as the 'world police' and
that strive to spread peace and harmony, can only function and help the afflicted victims of a State
if they get consent of the host government. If the host country's consent is given under
international pressure, such as in Darfur or Sudan, the mission faces significant challenges in
implementing their mandate.12
Hence, the protection of civilians has been a matter of concern for all International organizations
and this concern enhanced when the peacekeeping units failed to prevent the mass killings in
Rwanda and Srebrenica. Eventually, the key position of human security as an aspect of
international peace and security was recognized. The Secretary General of the United Nations
righteously argued that the real or the actual success of a peace support operation is related to the
human security of the local populace and in achieving a situation in which violence is reduced to
levels that are acceptable to the local population. Thus, steps must be taken to explore newer
avenues to fight for the cause of civilian protection some suggestions for which arc discussed
below.
11 U.N. Department of Peacekeeping Operations and Department of Field Support. UN Peacekeeping Operations: Principles and
Guidelines (2008)

12 Colum Lynch. Special Report into the Darfur Genocide, Part 1: They Jun Stood Watching. Foreign Policy
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ENHANCING PROTECTION OF CIVILIAN POPULATION: SUGGESTIONS


As it already mentioned in the paper that during a contemporary armed conflict the civilians are
deliberate targets of belligerents, these conditions challenge the realization of the necessary
protection of civilians in an armed conflict. Not only the civilians, who are stuck in the crossfire
between two parties in a conflict, are affected but also the humanitarian aid workers and
peacekeepers arc abducted and murdered by belligerents in conflict situations. In present scenario,
women and children constitute the majority of casualties who are exploited in an armed conflict.
In 1994, the Rwandan genocide witnessed mays rape and murders of women and children. Many a
times, peacekeepers that have been deployed to protect civilians in armed conflicts often find
themselves in untenable situations without proper strategy training, doctrine or equipment to
protect civilians. This usually occurs due to the intrinsic inadequacy of the force and hence, the
response to the protection of civilians in situations of armed conflict needs amendment.
The first proposal laid down by many humanitarians was that there needs to be an increase in
capabilities of peacekeeping forces to use force in order to protect civilians. The State in conflict,
firstly, needs to be less reluctant in calling for humanitarian assistance when in need. They need to cooperate
with the mandate of the peacekeeping troupes and assist them in reducing the chaos occurring in the
State. Secondly, the peacekeeping units should be perceived as a credible deterrent force in every case.
Hence, a peacekeeping unit should always include battalions with credible equipment and real capabilities
to defeat troops that are threatening civilians.
The Second proposal stated that there needs to be reconciliation in doctrines and policies of peacekeeping
while dealing with protection of civilians. The protection of civilians and peacekeeping are two different
concepts within the Department of Peace-Keeping Operations of the United Nations (DPKO). Hence,
both the concepts should merge into a coherent concept of protection of civilians against voluntary violence.
DPKO follows the ius ad bellum concept that deals with the right to use force in order to achieve
military objectives. Since the past few decades, many peacekeeping missions have also integrated the
concept of protection of civilians without realizing the accuracy of the steps taken by them. According
to DPKO's interpretation, peace keeping forces have the duty to react only when civilians are being
threatened by an imminent threat. Hence, two different sets of fundamentals make it chaotic for the
peacekeeping forces to perform their duties in protecting the civilians.

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The Third proposal states that there should be protection against voluntary acts of violence and that
should constitute a sub-category of protection prime importance that should be systematically identified and
separated from other aspects of protection. Humanitarians argue that the peacekeeping units should
follow the basic rule of protection that in saving human beings against voluntary acts of violence. With time, it
was noticed that humanitarian actors have contributed to increasing confusion on the exact meaning of
protection. Hence, this makes the peacekeeping units digress from their mandates. Nonetheless,
protection against voluntary acts of violence is extremely difficult to achieve, hence, leaving the
humanitarian actors to shift their focus on easier and less risky activities of assistance and relief.
Therefore, there is a need to separate protection against voluntary violence from all the other forms of
protection. This clarity is a necessity because it will help streamlining efforts and allow for clearer
channel of response on the ground to these types of needs.
Protection of civilians can only become more professional if there is clarity amongst the
peacekeeping units. These units need to he subject to the same rigours of programme planning as it is
expected on the field. The objectives given to them need to be clear, whether they are to reduce the
level of the threats faced by civilians or whether they are required to reduce their e xposure to it In
summary, the objects and goals sot for the protection of civilians in an armed conflict needs to
have a well-structured guideline.

Conclusion

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On 12 August 1999, many distinguished personalities including Kofi Annan. Prince Masan of
Jordan, and Sadruddin Aga Khan met in Geneva and together they signed a Solemn Appeal. The
most significant part of which is as follow:
We have come together in Geneva to make a solemn appeal to all peoples, nations and
governments. We call on the world: to reject the idea that war is inevitable and to work tirelessly to
eradicate its underlying causes; to foster relations between individuals, peoples and nations on the
basis of the principles that inspired the Geneva Conventions, namely respect for human dignity in
all circumstances, compassion for those who suffer, solidarity.
This appeal clearly points out the cry of the nations to light out the effects of wars that befall and
paralyse the affected for no less than forever and therefore the urgent need to treat it with the best of
our efforts especially to protect the worst affected and vulnerable civilians including women and
children along with diminishing further prospects of war.

It cannot be denied that every state is obliged to work for the welfare and in the best interest of its
subjects and therefore, it is incumbent upon it to ensure safe and protected environments to its
civilians. Where in this attempt of the governments, external or internal disturbances in the forms of
various conflicts and violent situations offer great challenges in the face of the states
competence and further pose a question on the availability of rights and protections that must be a
promise of all governments. The International Humanitarian Law seeks to work towards the
restoration of such rights and provides for reliefs against these violations. Thus, in order to ensure
such relief a proper framework of implementation, monitoring and evaluation of the rules and
policies and various operations is a necessity to achieve favorable results. For this, it needs to adapt
to changing times and adopt a progressive approach to keep its promise of a war free and protected
world in times to come.

References

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