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Int’l Humanitarian Law limits effects of armed conflict

Recognises the universal reality of existence of conflicts

By Ayesha Zuhair

Also referred to as the Law of War or the Law of Armed Conflict, International Humanitarian Law (IHL) is a distinct component of the International Law which seeks to limit the effects of armed conflict. For purely humanitarian reasons it seeks to, first, protect those who are not, or are no longer, taking part in fighting; and secondly, it places restrictions on the means of warfare – in particular weapons – and the methods of warfare such as military tactics.

For Sri Lanka which has been embroiled in a long-standing armed conflict, IHL is of particular relevance. In Colombo last week was the ICRC’s Larry Maybee (see box for profile) who delivered a lecture on International Humanitarian Law and its Applicability. The lecture was timed to coincide with the recently concluded National Law Week (October 30 to November 05).

According to Maybee, “IHL is a practical area of International Law which recognises the universal reality that conflicts exist and has been developed on this recognition to limit the effects of armed conflict. It is designed to minimise the sufferings of victims of armed conflicts – primarily civilians and various categories of combatants. But it does not regulate whether a State may actually use force; this is governed by a distinct part of international law set out in the UN Charter.”

The ICRC’s legal official stressed on the difference between human rights and humanitarian rights, pointing out that IHL applies only during times of war whereas Human Rights Law takes over under peaceful circumstances. While the two bodies of law have certain similarities, they have developed separately and are contained in different treaties.

“Human Rights Law does apply in times of armed conflict, but its applicability is restricted due to the very nature of hostilities,” he observed.

Elucidating on its origins, Maybee explained that IHL absorbs rules which have been developed over hundreds of years. It is rooted in the rules of religions and customs, with universal codification of the law having begun in the nineteenth century.

From then on, there has been agreement on the practical rules of warfare based on the bitter experiences of the past. The rules seek to register a balance between humanitarian concerns and military requirements, he said adding, “The reasons for conflict are irrelevant for IHL; it makes no value judgments. The rules apply to both sides irrespective of reasons.”

The bulk of IHL is found in the four Geneva Conventions of 1949, which have been ratified by 192 states, thus giving it the status of International Law. These Conventions have been developed and supplemented by two further agreements – the Additional Protocols of 1977 relating to the protection of victims of armed conflict. The latter is yet to be ratified by Sri Lanka.

Maybee went on to elaborate on the principles of IHL which are the principles of limitation; avoidance of unnecessary suffering and damage; distinguishing between military and civilian targets; proportionality and military necessity.

Where the principle of proportionality (“Economy of Effort”) is concerned, IHL lays emphasis on the use of means and methods of warfare, which must not be excessive in relation to the military advantage that is anticipated. Military necessity allows the use of proportionate force during an armed conflict. It is not an excuse for inhumane conduct and justifies only those measures indispensable to the fulfilment of a military mission.

Displaying graphic pictures of prisoners being subject to humiliation and torture at the Abu Ghraib prison in Iraq by US and British military personnel, the ICRC legal expert asserted that such acts were clearly in breach of IHL. It was in April 2004 that chilling images of Iraqi detainees undergoing physical and mental abuse at the hands of the US military emerged, sending shockwaves throughout the world.

Maybee drew attention to the central principle of distinction, which is an obligation to distinguish between the civilian population and combatants. “IHL recognises these two categories of persons in armed conflicts. But distinguishing can sometimes be difficult,” he said. Pointing out that it was an obligation to keep civilian casualties to a minimum, if not altogether avoided, he stressed that indiscriminatory attacks were outlawed.

This includes the use of cluster bombs which became a point of contention during the Israeli-Lebanon war in July this year. Cluster bombs are not illegal in warfare but its use can constitute a war crime. Dropped from aircraft or artillery pieces, they carry a large number of smaller bombs which detonate on impact. Along with its devastating consequences, the central problem is that not all bombs explode when it hits the ground.

Israel had been using old stocks of clusters bombs, and during the recent war as much as 40% of the bombs did not explode. As a result, the casualties continued to mount even after the war was brought to a halt. Owing to the reason that it is a continuing threat to civilian populations, the ICRC will attempt to place restrictions on its use in the future. He also broached the subject of suicide bombings, where he commented that the often indiscriminate nature of suicide bombings made it questionable under IHL.

Responding to a question at the conclusion of his presentation on the legality of the attack on unarmed sailors in Digampathana under IHL, Maybee indicated that military officers can be considered legitimate targets outside and away from the battlefield.

Although he refused to delve into the matter, he set out the general terms that were applicable, noting that the military is a legitimate target and that their level of preparation was irrelevant. “But it would have to be investigated on a case-by-case basis,” he added.

Around 100 sailors were killed and 116 injured in a suicide attack on unarmed Navy personnel at Digampathana on the Trincomalee-Habarana road. The LTTE carried out the attack by ramming an explosives-laden truck on to a convoy of 15 military buses. Digampathana was used as a transit point for giving clearance to naval personnel coming from Colombo and Trincomalee. -Daily Mirror


November 9, 2006 - Posted by | Media Journalism, News, News and politics, South Asia

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