International Humanitarian Law

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NOVO, Benigno Núñez [1]

NOVO, Benigno Núñez. The International Humanitarian Law. Multidisciplinary Core scientific journal of knowledge. 03 year, Ed. 06, vol. 01, pp. 145-157, June 2018. ISSN:2448-0959

Summary

This article aims to discuss the challenges of international humanitarian law that need to be addressed by the international community in areas such as terrorism, arrests, conduct of hostilities, occupation and sanctions. The need for the promotion of peace, moderation and humanization during armed conflicts. Increase the effectiveness and the respect of international humanitarian law, for example, raise the armed forces, as well as all individuals. Punish whenever there is need for all who fail to comply with the rules of peacemaking, in particular violations against the Geneva Conventions and the additional protocols.

Keywords: Challenges, peace, international humanitarian law.

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1. Introduction

 International humanitarian law or international law of armed conflict (LOAC) is a set of laws that protect people in times of armed conflict. Consists of the laws of the Geneva Conventions and the Hague Convention. Its laws concern the countries in conflict, the neutral countries, to individuals involved in the conflicts, the relationship between them and the protection of civilians.

International humanitarian law is part of international law governing relations between States and which consists of agreements concluded between States – usually referred to as treaties or conventions – as well as the General principles and customs that States accept as legal obligations.

The origins of international humanitarian law can be found in the codes and rules of religions and cultures of the world. The modern development of law began in the 1860; Since then, States have agreed on a series of practical standards, based on hard experience of modern warfare, which reflect a delicate balance between humanitarian concerns and military needs of States. With the growth of the international community, has also increased the number of States around the world who contributed to the development of international humanitarian law, which can today be considered as a truly law system universal[2].

A considerable part of the international humanitarian law lies in the four Geneva Conventions of 1949. Almost all countries in the world have accepted the binding conventions, which have been developed and supplemented by two more settlements – the 1977 Additional Protocols.

There are still several agreements that prohibit the use of certain weapons and military tactics, including the 1907 Hague Conventions, the Convention of the bacteriological (Biological) of 1972, the Convention of conventional weapons of 1980 and the Convention of Chemical Weapons 1993. The 1954 Hague Convention protects the cultural heritage in time of armed conflict.

Nowadays, many of the norms of international humanitarian law are accepted as customary law, i.e. as general rules that apply to all States.

2. Development

International humanitarian law covers two areas: 1-the protection of persons who did not participate in or no longer participate in hostilities; 2-the set of media restrictions (especially weapons) and the combat methods such as military tactics.

International humanitarian law protects people who do not participate in combat, such as those who have been wounded or shipwrecked, who are sick or who were made prisoners of war[3].

The protected persons shall not be attacked; must not inflict physical ill-treatment or degrading treatment; the wounded and sick shall be collected and processed. There are specific rules that apply to individuals who were taken prisoner or who were arrested; such standards include the provision of adequate food, shelter, as well as suitable legal guarantees.

Certain locations and objects, such as hospitals and ambulances are also protected and should not be attacked. International humanitarian law establishes a series of emblems and signs, easily recognizable, including the Red Cross and the Red Crescent. They can be used to identify people and places protected.

International humanitarian law prohibits all means and methods of combat that: 1) do not discriminate between people participating in hostilities and the people who, as civilians, are not participating in them; 2) cause unnecessary injury or unnecessary suffering; 3) cause serious damage or long lasting.

International humanitarian law forbids so the use of many weapons, including explosive bullets, chemical and biological weapons, as well as blinding laser weapons.

International humanitarian law applies only to armed conflicts. Does not cover the internal disorders such as isolated acts of violence, or regulates whether a State may or may not use force. This aspect is governed by an important part, but distinct, International law, contained in the United Nations Charter. International law may be applied only after the start of a conflict and applies uniformly to all parties, regardless of who started the hostilities[4].

International humanitarian law distinguishes between international armed conflicts and internal armed conflicts. The international armed conflicts are those in which at least two States are involved; are subject to a wide range of standards including those of the four Geneva Conventions and the first additional protocol. However, in the same way as in international armed conflicts, in an internal armed conflict all parties must act in accordance with international humanitarian law.

It is important to distinguish between international humanitarian law and international human rights law. Although some of its standards are identical, these two bodies of law have developed separately and are set out in different treaties. In particular, contrary to what happens in international humanitarian law, international human rights law applies in times of peace and many of its provisions can be suspended during an armed conflict.

Unfortunately, there are numerous examples of violations of international humanitarian law in conflicts in various parts of the world. The civilians are in increasing number among the victims of the hostilities. However, there are cases in which, thanks to international humanitarian law, it was possible to a protection of civilian persons, prisoners, sick and wounded, as well as restrictions on the use of barbaric weapons. Given the circumstances of extreme trauma inherent in the application of international humanitarian law, she will be always with great difficulty. An effective application continues to be extremely urgent.

Some measures have been developed to promote the respect of international humanitarian law. States have an obligation to educate their armed forces, as well as the general public, about the rules of international humanitarian law.

Should prevent and punish, whenever necessary, all violations of international humanitarian law. In particular, must enact laws to punish the most serious violations of the Geneva Conventions and additional Protocols are considered war crimes. Measures have also been taken at the international level: courts were created to punish acts committed in two recent conflicts and are examining the possibility of creating a permanent International Court with jurisdiction to punish war crimes.

Is through Governments and organizations, either as individuals, we can all contribute significantly to the implementation of international humanitarian law.

Of course, one of the main groups that literally carry the banner of Humanitarian Rights around the world is the Red Cross. The Association out founded in 1863 had Headquarters Geneva, located in Switzerland. Its founding members were five large families who joined in a Conference to bring proposals to assist the soldiers that, given recent events with the battle of Solferino where tens of thousands have died and many others were injured due to new technologies of artillery, they needed some form of support. The results of this first meeting would provide rules that today we are almost intuitive, including protection of civilians:

Any individual who is not in combat or somehow directly participating in the hostilities, need to be protected.

The sick and wounded must receive proper care regardless of the conflicting side that has in possession.

Prisoners must be protected from acts of reprisal and violence, like torture and humiliations that affect your dignity as a human being.

This organization is the oldest of the movements of national societies, in addition to the one with more prestige. Is one of the most recognized organizations in the world and won three Nobel Peace Prizes in 1917, 1944 and 1963. We can see the result of your effort and work in many countries. Currently the main operating centers of the group are located in Afghanistan, Iraq, Nigeria, South Sudan, Syria, Ukraine and Yemen, but not limited to these. It is important to note your active participation in the aid and the management of the colossal number of individuals homeless and displaced from their previous areas due to recent conflicts in Syria. Already about 6.5 million people according to the Organization, in addition to the more than 3 million people who seek help in refugee camps in neighbouring countries, such as Libya, Turkey, Jordan and Iraq.

Finally, given the presence of humanitarian law, one of the rules that have become an element of discussion important over the last few decades, particularly during the period of the cold war (1945-1991), outside the one that determines the parts belonging to a conflict have limits as to the means that can be used in terms of war material. In this sense, their own declarations of war need to be made up somehow, and need to go through certain criteria to be considered legitimate.

It is clear that this type of intervention has a chorus of critics extended considerably. First we need to consider what a country offers to meet the demands cited, not just your capital, to watch for example of enemy soldiers wounded, or even to arrange makeshift shelters and refugee camps, but Yes commits to your own national sovereignty. From the moment when a country signs a Treaty committing to limit his actions on the battlefield, even if this country had total capabilities to create and produce weapons that are prohibited by these international treaties, he's giving part of your right to seek at all costs to preserve your integrity, so your sovereignty over your own territory.

Unfortunately, there are numerous examples of violations of international humanitarian law in various conflicts around the world. The civilian population is, increasingly, as the victims of the hostilities. However, it is important to mention the existence of cases in which, thanks to international humanitarian law, it was possible to a protection of civilian persons, prisoners, sick and wounded, as well as restrictions on the use of harmful weapons. Given the circumstances of extreme trauma inherent in the application of humanitarian law, it will be always with great difficulty. Therefore, it is crucial to effective application of humanitarian law and continues to the same wish to achieve their goals. Should prevent and punish, whenever necessary, all violations of international humanitarian law, especially the promulgation of laws that serve to punish the most serious violations of the Geneva Conventions and Additional Protocols (such as the crimes of war). Current level, the creation of tribunals to punish acts committed in recent conflicts in addition to discussions on possibility of establishing a permanent international tribunal with powers more effective punishment for war crimes.

The day 03 October 2015, a u.s. airstrike hit a hospital of Médecins sans Frontières (MSF) in the city of Kunduz in Afghanistan, and about of 40 deaths, including patients and doctors. The city is the scene of conflicts between the Taliban and the Afghan Government – backed by the USA. Recently, on April 29, Gen. Joseph Votel, the Central Command of the armed forces of the United States, declared that the attack led by country was an incident, but not a war crime, since there was no intention of attacking the hospital and causing deaths. According to the version of the American Government, a combination of human and technical failures caused the hospital was confused with a building controlled by the Taliban.

The U.S. military involved in administrative punishments, such as took place received suspension and withdrawal of command and letters of disapproval, however did not receive criminal charges, since it was considered that they did not know they were attacking a medical facility. In addition, the Pentagon announced that it will compensate the victims of the attacks and their families.

While the U.S. version argue that there was no intent in acts, the head of human rights of the United Nations (UN), Zeid Ra'ad al-Hussein, classified the attack as a tragic, inexcusable and possibly even criminal.

The situation is not restricted only to Afghanistan. On day 26 of October 2015, an MSF hospital was attacked in Yemen by the Saudi Arabia-led coalition. Between 7 and 10 August 2015, nine hospitals have suffered attacks on Syria and on April 28 over a hospital was hit in the country. The Syrian Government and Russia were singled out as authors of the attacks – which they denied. Regardless of the trials that may still occur in order to punish such acts, all these cases point to the frequent attacks on civilians in conflicts.

The established conventions do not always manage to cover all the complexity of armed conflicts. The standards laid down in INTERNATIONAL HUMANITARIAN LAW were agreed between States, so the State established a formal commitment to respect the legislation that determines the war crimes. This is therefore a set of standards set by States and to States. In practice, what happens is that conflicts do not count with the participation only of State actors. The diversity of non-State actors who employ the strength – as terrorist groups, paramilitary groups and private military companies that often are transnational – unsurprisingly in armed conflicts and becomes increasingly evident. In this scenario, you have a hard time making them also undertake with respect to the rules governing armed conflict. Many non-State groups – such as the terrorist groups – aim precisely targeting civilians to spread a feeling of fear and terror, which directly violates INTERNATIONAL HUMANITARIAN LAW. The challenge of legal instruments is framing these groups and their individuals to respond criminally, so violations would be prosecuted and sentenced in the courts – whether national, ad hoc tribunals or the International Criminal Court.

It's not just the diversity of actors that hinders the protection of civilians. The case of the attack on the hospital in Afghanistan demonstrates that regular armed forces also offer risks to the civilian population, mainly due to the use of technologies that are increasingly the warfighter on the battlefield. The air strikes allow the destruction of military targets, however constitute a problem when hit civilian targets. Regardless of these attacks be intentional or the result of a technical fault, it is a fact that they cause large impacts on the civilian population. When we speak of unmanned aerial vehicles (drones) damage are also of concern. Although there is the possibility to make an attack with the drones, targeting only military targets and sparing civilians, that is not always observed in practice. This technology makes that there is a physical and emotional disconnection from the pilot with the battlefield. Such removal can lead to trivialization of violence that reaches, disproportionately, civilians. In this way, various State actors are also responsible for hit the civilian population during armed conflict to use technologies indiscriminately, without due care with international standards.

The existence of a mechanism of sanctions in international humanitarian law conditions, of fundamental way, your effectiveness. What your purpose is punitive as the sanctions system, but this structure also has a preventive purpose, as your introduction on the internal law of States, makes your influence on the behaviors of the people and on the performance of own State, for, at the same time, punish and warn.

The system penalises two categories of infractions. The first type of infraction that States must punish are the shortcomings and acts contrary to the provisions of the conventions and protocols. The actions which the international humanitarian law, with respect to this type of infringement, are identical to those contained in the international general public with objections, the contrary acts and violations of international treaties. Means that in the internal law of States, these performances are liable to administrative sanctions, or judicial disciplinary and that, at the international level, are applied the mechanisms of international responsibility regarding non-compliance with the treaties. The primary obligation of the State is therefore to take all necessary measures to cease the behavior or violatório of these provisions.

Secondly, there is a system of the Geneva law, known as the serious Violations ", which are classified under this fact, as" war crimes ": these are the violations that, from the point of view of the authors of humanitarian instruments, represent a danger especially serious and stay unpunished, would bring the total bankruptcy of the system.

The term "serious violations" any of the acts that the conventions and the Protocol 1 list as such, thorough manner, which means that the sort of behavior that constituted a war crime, operate the device itself treaties.

The authorities must then undertake to judge people accused of having committed infractions, whether by way of comissivo mode, or for failure to act, contrary to a duty to act. Of these authorities, the military leaders have an obligation to ensure private prevent constitutive infractions of war crimes, as well as repressing them and report it, otherwise, the competent organs.

It must be emphasized, too, the principle of individual responsibility, enshrined by this right in the case of war crimes. This principle precludes the subtraction of the responsibility of a person with reason acting as a representative of a State organ, complying with the orders from above, in order to extract yourself from your culpability.

On the other hand, regarding war crimes, establishing itself in the Geneva system, called "universal criminal competence" of the Assembly of States parties to the treaties of Geneva.

The consequence of this universal system of punishment, which obliges the State did attend the accused war crimes before their own courts to extradite him to be tried, under all the guarantees of due legal process, in theory excludes the possibility that the war crimes stand without the appropriate judgment. This rule of "judge or the judge" guarantees so, in principle, the universality of the functioning of the repressive apparatus provided for by the treaties of Geneva.

In fact, we see that the functioning of the system of sanctions of international law depends entirely on the political will of States. It's not about not of imperfection, nor the legal shortcomings of that sanction system, but only the means to implement it in national law, and make it respect in international relations.

In fact, in any legal system violations shall be considered as evidence that the laws against which a threat are not necessary. On the contrary, for violating a rule, it is imperative that it exists, and, in the current state of international humanitarian law, since there is no shortage of such rules, but yes, we are witnesses of it every day, the political will to observe them and comply with them.

As to the establishment of the system of "universal sanction", is without prejudice to him the possibility of creating ad hoc international courts with competence to meet humanitarian law violations, such as those imposed after World War II, and more recently for the ex-Iugoslávía and Rwanda, or acknowledge the competence, relating to the application of IHL, to the existing international courts such as the International Court of Justice at the Hague, for example.

The IHL is, we must not forget that, a right of States, although the momentum of your modern and your coding development has been widely promoted by the International Committee of the Red Cross.

Consequently, although the sources of inspiration of IHL are philanthropic nature, positive standards of their treaties, negotiated by plenipotentiaries of the States parties, often imbued with own reasonings ' reason of State ", in which the "imperatives of humanity", which constitute the cornerstone of the system, are tempered by considerations induced "military needs".

In contrast, the performance of a code based on concepts that differentiate the barbaric civilization, can not, and should never be interpreted as a weakness or concession in the face of an opponent. Well understood and intelligently applied, the humanitarian law, whose deep sense does not represent or the minimum expression of the respect due the dignity inherent in every human being, does not hinder in any way the task accomplished by the armed forces and order forces to defend the security of a society or a country.

In fact, an authority that comes to demonstrate to the population that your struggle is carried out in strict legality, will show your moral solvency all the time and your ethics, and thus win the trust and support of the citizens, without which you can never get a win definitive, nor establish a just and lasting peace.

Finally, we must convince us, today more than ever, that IHL is a common heritage of mankind, which, given your universal character, protecting the world against total chaos and against atrocities without limits. It is for this reason that article 1 common to the four Geneva Conventions reiterates the collective responsibility of all the Nations, not only to "respect" their standards, when directly involved in situations of armed conflict, but also for they "make respect", by the parties involved in any conflicts, and risk of view gradually fade a legal and moral building patiently built, that well could take, some day, our last bulwark against the madness destroyer of the human being[5].

The Federative Republic of Brazil has ratified on 29 June 1957 the Geneva Conventions of 1949 and joined in, his two 05.05.1992 Additional Protocols of 1977. These instruments contain a set of international rules intended to give protection to the victims of armed conflicts.

Today, almost all the countries of the world (185 countries) are parties to these conventions and therefore, pledged to "respect and ensure respect" rules, as described in your text, and specifically, with this special purpose, give them in their Armed Forces. The goal of this section is to enable the officers, which is intended, to improve your knowledge of the existing humanitarian rules, and make known the essential rules of behaviour to subordinates, which will receive instructions simple and accurate, through the text that follows, as well as some of the comments that accompany it.

Final considerations

 There is currently a great deal of challenges to the international humanitarian law that need to be addressed by the international community in areas such as terrorism, arrests, conduct of hostilities, occupation and sanctions. However, there are many cases in which this right was present to provide greater protection to civilians, the sick, wounded, women, children, among others. It is known that it is very difficult to put into practice all these standards, since there are numerous circumstances in which compromise the relations between States.

The need for international humanitarian law for the promotion of peace, moderation and humanization during armed conflicts. Some initiatives are imposed on those States with the goal of increasing the effectiveness and respect for INTERNATIONAL HUMANITARIAN LAW, for example, raise the armed forces, as well as all individuals. Should punish whenever there is need for all who fail to comply with the rules of peacemaking, in particular violations against the Geneva Conventions and the additional protocols.

References

ALBERICO, Gentili. The law of war. Collection Classics of international law, Second Edition, 2006.

Fields, Camila. The Emergence and evolution of humanitarian law. University of Brasília (UNB): Department of international relations, 2008.

DEYRA, Michel. International Humanitarian Law. Attorney General's Office: Bureau of documentation and comparative law, ed. 1, 2009.

KISSINGER, Henry. Diplomacy. Touchstone Books, New York, ed. 1, pag 103-136, 1994.

[1] Lawyer, Ph.d. in international law by the Universidad Autónoma de Asunción.

[2] Fields, Camila. The Emergence and evolution of humanitarian law. University of Brasília (UNB): Department of international relations, 2008.

[3] DEYRA, Michel. International Humanitarian Law. Attorney General's Office: Bureau of documentation and comparative law, ed. 1, 2009.

[4] ALBERICO, Gentili. The law of war. Collection Classics of international law, Second Edition, 2006.

[5] KISSINGER, Henry. Diplomacy. Touchstone Books, New York, ed. 1, pag 103-136, 1994.

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