IHL cannot guarantee humanity in armed conflicts. This is true because it is not sufficiently respected, and States are unwilling and unable to accept mechanisms that efficiently enforce it, which would anyway be astonishing for a situation – armed conflicts – that would not exist if international law was already regularly and efficiently enforced. This is also the case because IHL rules cannot protect everyone everywhere at all times. Rather, IHL rules operate based on many distinctions between armed conflicts and other situations of violence that are not covered by IHL, IACs and NIACs, civilians and combatants, military objectives and civilian objects and own and occupied territory. Such binary distinctions are often difficult to apply to the multifaceted realities of contemporary armed conflicts, which only rarely involve the regular armies of well-organized and well-established States. Those distinctions also leave parties and individuals leeway to manipulate (in the absence of compulsory adjudication) IHL, and their consequences are not always obvious from a humanitarian point of view.
Browse by title
Dean V. Williamson
The purpose of this chapter is to provide an overview of IHL by highlighting the major delimitations specific to this branch of public international law. The rules mentioned in this overview will be discussed in more detail in Chapter 8 on IHL’s protective regimes, while specific delimitations, their impact and related controversies will be discussed further in Chapter 6 on IHL’s scope of application as well as in Chapter 7 addressing the differences and similarities between IHL of IACs and IHL of NIACs.
The idea that wars are subject to rules and limitations has existed for millennia, as it is inherent in the very concept of war. Throughout history, all civilizations and religions have established some rules that today would be qualified as IHL. Even before modern IHL was codified in multilateral treaties, belligerents frequently concluded bilateral agreements or issued unilateral instructions in this field. Following the initiative of Henry Dunant and later the ICRC in the nineteenth century, the first multilateral treaties were adopted in this field. Subsequently, such treaties were periodically extended and adapted to new problems arising in armed conflicts. Today, this branch of public international law is largely codified in the four Geneva Conventions of 1949 as well as in the related Additional Protocols of 1977. While all States are parties to the Conventions, a number of important States have yet to accept the Protocols.
IHL is not the only branch of international law that provides answers to humanitarian problems arising in armed conflicts. Other branches of international law equally apply during armed conflicts. Today, it is no longer possible to divide international law into the law of war and the law of peace. Indeed, many rules that were initially adopted to tackle peacetime issues also apply during armed conflicts. Any lawyer who gives advice, makes arguments or adjudicates cases concerning humanitarian problems must know all of the relevant rules of international law that apply (and not simply the IHL rule) and must also understand their interplay as well as any related controversies in order to determine the answer international law provides to a given problem.
IHL rules applicable to IACs and NIACs are different but increasingly similar. Chapter 8 will present the substantive protective regimes of IHL by examining the more detailed IHL of IACs, and it will also mention the extent to which those regimes also apply to NIACs. The present chapter discusses why and to what extent IHL of IACs and IHL of NIACs are different or similar as well as where the rules applicable to NIACs can be found. It also addresses some controversies specific to IHL of NIACs.
Rules, Controversies, and Solutions to Problems Arising in Warfare
Public international law forms an umbrella framework under which its various substantive areas of law sit. The fragmentation this represents is a well-known phenomenon in international law and its implications are manifold.1 A key aspect of this fragmentation and increasing specialisation is the potential for competing norms to encounter each other within the international legal space. There seem to be several mechanisms for resolution of this available in theory, and not a great deal of consistency in practice. One area of contestation in particular has attracted controversy, largely due to the public interest issues implicated, the asymmetries in dispute settlement approaches and the prioritising of one set of norms over another – environmental law, policy and protection objectives and international investment law. The environment/investment nexus became a high-profile international issue through a number of coinciding, parallel channels. On one level, the damaging effects of the activities of multinational corporations on the environment and the health and well-being of local communities formed the backdrop against which international legal issues would be played out. Catastrophic examples of this mode of encounter included the Bhopal disaster, the ‘dieback’ experienced downstream from the BHP copper and gold mine at Ok Tedi and Chevron/Texaco’s leaching of crude oil into the Amazonian ecosystem. At the same time as such micro-level incidents were occurring, global environmental issues that involved multinational corporate operations, such as climate change and the need for the widespread adoption of policies aimed at achieving sustainable development, were appearing in international instruments. The environment/investment nexus also became particularly visible in the late 1990s in the context of investor-state arbitration, when environment- related investment disputes began to be filed with international tribunals, which then triggered extensive protests regarding the negotiation of a Multilateral Agreement on Investment under the auspices of the Organisation for Economic Co-operation and Development (OECD). From that point onwards, the interaction between the treatment of environmental issues and norms and the rules contained within international investment agreements remained controversial.
IHL protects the life and dignity of persons affected by armed conflicts, but only to the extent States consider their respect to be compatible with the legitimate aim of an armed conflict to weaken the military potential of the enemy. The precise protection offered by IHL depends on the classification of the conflict as international or non-international, the classification of the affected person as a civilian or combatant and many other legal categorizations.