NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

PROJECT ON

Nature and Evolution of

International Humanitarian Law
SUBMITTED TO
Ms. Prashna Samaddar
FACULTY OF Public International Law

Submitted by ASHISH KUMAR CHANDAHE

ROLL NO.- 33
Section C

HIDAYATULLAH NATIONAL LAW

UNIVERSITY
RAIPUR, C.G.
0|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.

Certificate of declaration..............................................................................2
Acknowledgments........................................................................................3
Research Question........................................................................................4
Research Methodology.................................................................................4
Introduction..................................................................................................5
Objective......................................................................................................6
What is International Humanitarian Law ?................................................. 7
Source of International Humanitarian Law......................................................8
Nature of International Humanitarian Law...........................................................9
Application of International Humanitarian Law.........................................10
Evolution on International Humanitarian Law...............................................11
International Humanitarian Law and Human Right..........................................13
Issues of International Humanitarian Law Regarding Human Rights..................13
Contemporary challenges for International Humanitarian Law............................17
Conclusion.............................................................................................................19
References.............................................................................................................20

1|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

CERTIFICATE OF DECLARATION
I Ashish kumar chandahe hereby declare that the project work entitled submitted in HNLU, Raipur, is
record of an original work done by me under the able guidance of Ms. Prashna Samaddar faculty
member (PUBLIC INTERNATIONAL LAW), HNLU, Raipur.

ASHISH KUMAR CHANDAHE

ROLL NO.- 33
SEMESTER 4
BATCH XI

2|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

Acknowledgement
I feel myself highly exhilarated to work on this project involving Nature and Evolution of
International Humanitarian Law . And I have tried my level best to throw light upon his
personality and achievements.
I take this opportunity to thank Ms. Prashna Samaddar

who had played the role of a central

character and always given me the courage and wisdom to shape my ideas in right direction. Special
thanks to the I.T. staff and library staff who have devoted their valuable time to give me all sorts of
suggestions, ideas and facilities regarding this topic.
Last but not the least I thank all the members of the H.N.L.U. and all others who have helped me in
the completion o this work.

3|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

RESEARCH QUESTIONS

1. Explain the role of

International Humanitarian Law in the Human Rights?

2. What are the Challenges which is being faced by International Humanitarian Law?

RESEARCH METHODOLOGY
This project is based upon doctrinal method of research. This project has been done after a after a
through research based upon intrinsic and extrinsic aspects of the project.
Sources of Data:
The following secondary sources of data have been used in the project1. Articles.
2. Books
3. Websites
Method of Writing:
The method of writing followed in the course of this research project is primarily analytical
and based on secondary source of data.

4|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

INTRODUCTION
International humanitarian law is the law of armed conflict or law of war and their effects. The goal of
international humanitarian law is to limit the effects of war on people and property and to protect
particularly vulnerable persons.
States have always been limited in the ways in which they conduct armed conflicts, from the
adherence to national laws and bilateral treaties, to the observance of time-honored customary rules.
However, throughout history these limitations on warfare varied greatly among conflicts and were
ultimately dependant on time, place, and the countries involved. Not until the 19th century was there a
successfully effort to create a set of internationally recognized laws governing the conduct and
treatment of persons in warfare.
In the mid-1850s, Henri Dunant - founder of the International Red Cross - helped champion the first
universally applicable codification of international humanitarian law: the Geneva Convention of 1864.
From these roots, international humanitarian law evolved over the course of a century and a half. The
Hague Conventions of 1899 and 1904 limited the means by which belligerent states could conduct
warfare.
Many of the international treaties on armed conflict were made in response to the many new methods
of warfare. World War I (1914-1918) witnessed the first large-scale use of poison, aerial
bombardments and capture of prisoners of war. World War II (1939-1945) saw civilians and military
personnel killed in equal numbers.
The Charter of the United Nations (1945) stipulates that the threat or use of force against other states
is unlawful, except in the case of self-desfense. Following World War II, the Geneva Conventions of
1949, as well as its two Additional Protocols of 1977, further limited the means of warfare and
provided protections to non-combatants civilians, and prisoners of war. In the aftermath of the
atrocities of the Holocaust, the Genocide Convention of 1948 outlawed acts that were carried out with
the intention of destroying a particular group. In addition to these conventions, international
humanitarian law has been developed and refined through several statutes and precedents laid down
by international tribunals set up to try war criminals, as well as advisory opinions the International
Court of Justice.

5|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

Objective of Study
1) To Study about International Humanitarian law
2) To discuss about Challenges of International Humanitarian Law
3) To analysis the Evolution of International Humanitarian

6|Page

Law

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

What is International Humanitarian Law?

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the
effects of armed conflict. It protects persons who are not or are no longer participating in the
hostilities and restricts the means and methods of warfare. International humanitarian law is also
known as the law of war or the law of armed conflict.
International humanitarian law is part of international law, which is the body of rules governing
relations between States. International law is contained in agreements between States treaties or
conventions , in customary rules, which consist of State practice considered by them as legally
binding, and in general principles. International humanitarian law applies to armed conflicts. It does
not regulate whether a State may actually use force; this is governed by an important, but distinct, part
of international law set out in the United Nations Charter.
General Definition of International Humanitarian Law (IHL)
International Humanitarian Law applicable in armed conflicts means international rules, established
by treaty or custom, which are specifically intended to solve humanitarian problems that arise directly
from international or noninternational armed conflicts. For humanitarian reasons, these rules protect
persons and property that are, or may be, affected by conflict by limiting conflicting parties rights to
choose their methods and means of warfare. The expression international humanitarian law
applicable in armed conflict is often abbreviated to International Humanitarian Law or Humanitarian
Law.1Though the military tends to prefer the expressions Laws of Armed Conflicts (LOAC) or
Laws of War, these two expressions should be understood as synonymous with IHL.
Relevance of International Humanitarian Law
International humanitarian law is part of international law, which is the body of rules governing
relations between States. International law is contained in agreements between States - treaties or
conventions -, in customary rules, which consist of State practice considered by them as legally
binding, and in general principles.
International humanitarian law applies only to armed conflicts. It does not regulate when a State may
actually use force; this is governed by an important, but distinct, part of international law set out in the
United Nations Charter1.
IHL is divided into two branches:

Law of Geneva; and

Law of The Hague.

7|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
The Law of Geneva, which is designed to safeguard military personnel who are no longer taking part
in the fighting and people not actively involved in hostilities, i.e. civilians.
These categories of person are entitled to respect for their lives and for their physical and mental
integrity. They also enjoy legal guarantees. They must be protected and treated humanely in all
circumstances, with no adverse distinction.
More specifically: it is forbidden to kill or wound an enemy who surrenders or is unable to fight; the
sick and wounded must be collected and cared for by the party in whose power they find themselves.
Medical personnel, supplies, hospitals and ambulances must all be protected.
There are also detailed rules governing the conditions of detention for prisoners of war and the way in
which civilians are to be treated when under the authority of an enemy power. This includes the
provision of food, shelter and medical care, and the right to exchange messages with their families.
The law sets out a number of clearly recognizable symbols which can be used to identify protected
people, places and objects. The main emblems are the red cross, the red crescent and the symbols
identifying cultural property and civil defence facilities. As protected emblems their unauthorised use
is prohibited by international and national law.
The Law of the Hague which establishes the rights and obligations of belligerents in the conduct of
military operations, and limits the means of harming the enemy.
International humanitarian law prohibits all means and methods of warfare which:

fail to discriminate between those taking part in the fighting and those, such as civilians, who
are not, the purpose being to protect the civilian population, individual civilians and civilian
property;

cause superfluous injury or unnecessary suffering;

cause severe or long-term damage to the environment.

Humanitarian law has therefore banned the use of many weapons, including exploding bullets,
chemical and biological weapons, antipersonnel landmines and blinding laser weapons.

Source of International Humanitarian Law

Since IHL is an integral part of Public International Law, its sources correspond, logically enough, to
those of the latter, as they are defined in Article 38 of the Statute of the International Court of Justice.
According to Art 38 (1) of the Statute of the International Court of Justice, which is regarded as an
authoritative statement of the sources of international law, the Court shall apply:
international conventions ;
international custom, as evidence of a general practice accepted as law;
the general principles of law recognised by civilised nations; and

8|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
judicial decisions and the teachings of the most highly qualified publicists, as subsidiary means
for the determination of rules of law.
Treaties and custom are the main sources of international law. In respect to IHL, the most important
treaties are the Geneva Conventions so-called Hague Conventions. While treaties are only binding
upon parties to a treaty, States can also be bound by rules of customary international law. However,
this requires that there is usage to be found in the practice of states and considered by those states as
practice. There is wide consensus among scholars that the rules contained in the four Geneva
Conventions of 1949 for the Protections of Victims of War and in The Hague Convention (IV) of 1907
on the Laws of War on Land (with the exception of administrative, technical and logistical
regulations) reflect customary international law. There is also agreement that many provisions of
Additional Protocol I and, to a lesser degree, that the rules contained in Additional Protocol , reflect
custom. When treaty rules are considered to reflect custom, they become binding for all States States
are also bound by general principles of law. In regard of IHL one may think of the fundamental
principles of IHL such as the principle of distinction or the principle of proportionality.

Nature of International Humanitarian Law

Humanitarian law is that considerable portion of international law which is inspired by a feeling for
humanity and is centred on the protection of the individual in time of war. When the writer first
proposed the term humanitarian law he was told that it combined two ideas of different natures, one
legal and the other moral. Well, the provisions constituting this discipline are in fact a transposition
into international law of moral, and more specifically, of humanitarian concerns. Accordingly, the
name seems satisfactory. It is precisely because this law is so intimately bound to humanity that it
assumes its true proportions, for it is upon this category of law , and no other, that the life and liberty
of countless human beings depend if war casts its sinister shadow across the world. The name
international humanitarian law , soon adopted by the majorityof publicists, has now become quasiofficial.1 Humanitarian law has two branches , one bearing the name of Geneva , and the other the
name of the Hague.
This law consists of the four Geneva Conventions of 1949 and the two additional Protocols of 1977,
which constitute an imposing legal corpus comprising some 600 articles, codifying the rules
protecting the person in armed conflicts. Having a specifically humanitarian character, the primordial
element of civilization and peace , the law of Geneva is predicated upon the essential ideal of the Red
Cross. It was indeed the international Committee of the Red cross(ICRC) which inspired and
developed it from the outset. In return, the Geneva institution , the neutral organ of the Red Cross in
times of conflict , finds in it the necessary legal basis for its action of protection and assistance.
The texts of Geneva were developed exclusively for the benefit of war victims; they give the states no
rights against individuals, in contrast to the texts of the Haue , In Geneva, an era opened which gives
primacy to man and to the principle of humanity.

It is incorporated into the title of the Diplomatic Conference of Geneva , 1974-1977 on the reaffirmation and Development
of International Humanitarian Law applicable in Armed Conflicts.

9|Page

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
The texts of the Hague are also unquestionably of humanitarian inspiration. It is their purpose
however to regulate hostilities and they are accordingly based in part on military necessities and the
preservation of the State.
This law was principally the result of the Hague Conventions of 1899, revised in 1907.From it must
be excluded those most significant parts relating to the status of prisoner of the war , wounded and
shipwrecked persons in maritime warfare and civilians in occupied territory- which , in 1929 and
1949 , were incorporated into the law of Geneva , where they logically belong. The recently adopted
Protocols additional to the Geneva conventions contain material which traditionally belonged to the
law of the Hague, such as the conduct of combatants and in a chapter of vital importance the
protection of civilians against the dangers of war. Thus , the distinction between the movement of
Geneva and that of the Hague appears to be fading away.

Application of International Humanitarian Law

International Humanitarian Law (IHL) applies in two very different types of situations: international
armed conflicts and non international armed conflicts. Before defining these two situations of
application a few words should be said about the notion of armed conflict, which has, from 1949
onwards, replaced the traditional notion of war.
According to the Commentary to the First Geneva Conventions of 1949,12 The substitution of this
much more general expression (armed conflict) for the word war was deliberate. One may argue
almost endlessly about the legal definition of war. A State can always pretend when it commits a
hostile act against another state, that it is not making war, but merely engaging in a police action, or
acting in legitimate self defense. The expression armed conflict makes such arguments less easy.
Any difference arising between two States and leading to the intervention of armed forces is an armed
conflict ... even if one of the Parties denies the existence of a state of war.
Although the treaties of IHL systematically refer to different types of armed conflicts, they do not
provide for a general definition of that concept. The first comprehensive definition has been
developed by the International Tribunal for the former-Yugoslavia (ICTY). According to this
definition () an armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized armed groups or between
such groups within a State.
This definition is now widely accepted and has since been used in a number of military manuals and
in numerous court cases (which demonstrate how judicial decisions can become sources of IHL).
International armed conflict
IHL relating to international armed conflict applies to all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting Parties, even if the state of war
is not recognized by one of them.14 The same set of provisions also applies to all cases of partial
or total occupation of the territory of a High Contracting Party, even if the said occupation meets with
no resistance.
According to traditional doctrine the notion of international armed conflict was thus limited to armed
contests between states. During the Diplomatic Conference which led to the adoption of the two

10 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
Additional Protocols of 1977, this conception was challenged and it was finally recognized that wars
of national liberation should also be considered international armed conflicts.
Non-international armed conflict
Traditionally non-international armed conflicts (or, to use an outdated terminology: civil wars) were
considered purely internal matters for states, for which no international law provisions applied. This
view was radically modified with the adoption of Article 3 common to the four Geneva Conventions
of 1949. For the first time, the community of States agreed on a set of minimal guarantees to be
respected during non-international armed conflicts. In spite of its extreme importance, Article 3 does
not offer a clear definition of the notion of non-international armed conflict.17
During the Diplomatic Conference of 1974-1977, the need for a comprehensive definition of the
notion of non-international armed conflict was reaffirmed and dealt with accordingly in Article 2 of
Additional Protocol II.
According to that provision, it was agreed that Protocol II Shall apply to all armed conflicts not
covered by Article 1 of Protocol I and which take place in the territory of a High Contracting Party
between its armed forces and dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol.
This fairly restrictive definition applies only to the situations covered by Additional Protocol II. The
definition does not apply to the situations covered by Article 3 common to the four Geneva
Conventions.18 Practically, there are thus situations of noninternational armed conflicts in which only
Article 3 will apply, the level of organization of the dissident groups being insufficient for Protocol II
to apply. Conversely, common Art 3 will apply to all situations covered by Additional Protocol II.
Other situations
IHL is not applicable in situations of internal violence and tensions. This point has been clearly made
in Article 1 (2) of Additional Protocol II, which states, This Protocol shall not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts
of a similar nature, as not being armed conflicts.

Evolution on International Humanitarian Law

International Humanitarian Law (IHL) is at a crossroads. Though first implemented to reduce war
casualties and prevent atrocities, over the course of the last fifty years the nature of armed conflict has
changed to such a degree that enforcement of IHL in some circumstances leads to worse human rights
violations than would have occurred otherwise. One such recent example includes accusations with
regard to Israeli soldiers in neighborhoods hosting suspected militants. Soldiers were instructed to
clear out non-militants from the residence, try to defuse the situation and talk the suspected militants
into surrendering. This is clearly a more humanitarian approach than raiding a suspected militant
hideout without warning, increasing the likelihood of armed resistance and civilian casualties. Yet
under IHL, which prohibits the use of enemy civilians for military purposes, this is illegal. On the
other end of the spectrum, one can imagine situations where a state is brutally oppressing a segment

11 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
of its population, committing genocide or crimes against humanity, stripping members of that group
of any political recourse and leaving no hope for conventional military victory due to a disparity in
resources. IHL currently condemns those groups to suffer immeasurable horrors rather than utilize
unconventional warfare tactics.
Changes need to be made to both the letter of IHL and its enforcement. Many proposals have been put
forward recently that would make immediate impacts toward reducing anti-humanitarian impact of
IHL. Gabriella Blum has suggested permitting a humanitarian necessity justification defense, which
would allow combatants to violate certain IHL if doing so yields greater humanitarian results. She
also suggests changing our war status classification paradigm, i.e. combatants vs. civilians. Such a
change would emphasize the inviolability of human life in war and focus the predominant
considerations in IHL on sparing those who are not threatening soldiers due to an intentional
attack. Cherif Bassiouni has made many suggestions that address the effectiveness of IHL, which
include a new approach to lawful combatants and POWs of non-state actors willing to abide by IHL,
amending international law such as the Genocide Convention and the Convention Against Torture to
include applicability to non-state actors, and recognition by the U.N. of the Responsibility to Protect.
These proposals need to be adopted and will help to make IHL more relevant in the current state of
conflict.
Additionally, greater relevance and effectiveness can be achieved by applying the positive sovereignty
concept to the Responsibility to Protect in international law, and setting up an enforcement tribunal to
ensure compliance. The Positive Sovereignty Principle holds that states have a responsibility to
prevent genocide, war crimes, crimes against humanity and ethnic cleansing or face retribution from
the international community. The notion that genocide, war crimes, crimes against humanity and
ethnic cleansing are unacceptable is an international norm and codified in numerous human rights and
humanitarian law treaties. However, the politics of enforcement, particularly in the U.N. Security
Council, often renders these treaties ineffective. Rwanda and Darfur are but two of the most chilling
examples.
The Human Rights Council has the potential, after serious reform, to be our strongest tool for the
prevention of egregious crimes by exposing precipitous rights abuses. The International Criminal
Court is only equipped to handle these crimes after the fact. But currently, thanks to the political state
of the U.N. Security Council, the international community is generally incapable of stopping these
crimes as they happen. A treaty similar to the Rome Statute should be passed that creates an
independent tribunal which would make binding decisions on its members first on whether member
states are in breach of their of their positive sovereignty by committing one of the four crimes listed
above, and second making recommendations for action when a state is found in violation. The
structure of the tribunal should be in the model of the I.C.C. This new tribunal would have binding
power to determine when military intervention by state parties is necessary by measuring situations
against the six criteria laid out in the International Commission for Intervention and State
Sovereignty: Just Cause, Right Intention, Final Resort, Legitimate Authority, Proportional Means, and
Reasonable Prospect. This power should be limited to conflicts not of an international character.
Ultimately, the goal would be to incorporate the tribunal into the make-up of the United Nations with
the Security Council relinquishing its authority on these graves crimes committed during internal
conflicts, but retaining its international peacekeeping and general enforcement powers. The Security
Council would retain most of its authority while allowing the most serious violations of positive
sovereignty to be addressed without the political pitfalls that have frequently lead to injustice. Either

12 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
way, intervention in the most extreme cases will help prevent victimized groups from resorting to
committing atrocities in retaliation.

This idea is a political impossibility at the moment, but it is an aspirational one. Most current
manifestations of international government were at aspirational some point or continue to be so. IHL
seeks to reduce human suffering. However, until we are able to eliminate the most egregious forms of
human suffering, IHL will continue to work increasingly against its own purpose.

International Humanitarian Law and Human Right

International humanitarian law (IHL) and human rights law are complementary. They both seek to
protect human dignity, though they do so in different circumstances and in different ways. Human
rights law applies at all times and in all circumstances, and it concerns all persons subject to the
jurisdiction of a State. Its purpose is to protect individuals from arbitrary behavior by the State.
Human rights law, therefore, continues to apply in times of armed conflict. However, human rights
treaties, such as the International Covenant on Civil and Political Rights, the European Convention
and the American Convention on Human Rights authorize derogations under stringent conditions
from some rights in time of public emergency which threatens the life of the nation, of which armed
conflict is certainly an example. In other words, a number of rights (freedom of movement, liberty and
security, freedom of association, etc.) may be limited or suspended during the public emergency, but
only to the extent strictly required by the exigencies of the situation (both territorially and
temporarily). There are mains, however, a core of rights that may never be suspended at any time or
in any circumstances. In times of armed conflict, a special system of law, IHL, comes into effect. It is
a set of rules especially adapted to armed conflict that serves to protect the victims of war (civilians,
wounded and sick, prisoners, displaced, etc.) and to regulate the conduct of hostilities.
As it applies only in exceptional circumstances, no derogations are allowed. Many provisions are
made for international armed conflicts, but far fewer apply to non-international armed conflicts. The
principal purpose of IHL is to protect the life, health and human dignity of civilians and combatants
no longer involved in hostilities (captured, wounded or sick combatants), and to limit the rights of
parties in conflict to use methods of warfare of their choice. The aim is to limit the suffering and
damage caused by armed conflict. In doing so, IHL may be said to protect the core of human rights
in times of armed conflict. These core protections include the prohibition of slavery, the prohibition of
torture and inhumane treatment and the prohibition of any retroactive application of the law. Unlike
other rights (such as freedom of speech, of movement and of association) that may be abrogated in
times of national emergencies, the core protections afforded by IHL can never be suspended. If all
these core protections are brought together, it can be seen that both IHL and human rights law set
forth essential basic rights.

Issues of International Humanitarian Law Regarding Human

Rights
13 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
Women and Armed Conflict
International humanitarian law has always accorded women general protection equal to that of men.
At the same time, the law recognized the need to give women additional special protection according
to their specific needs. The specific protections for women either as civilians or combatants, are
enshrined in the Geneva Conventions and Protocols. Torture or cruel, or degrading treatment, slavery,
and servitude are strictly prohibited as is sexual violence, forced prostitution and rape.
Belligerents must afford the same treatment and protection to everyone. No discrimination on the
basis of sex is permitted. However, differences in treatment are outlined in international humanitarian
law in order to respond to and acknowledge special needs of women. In addition, crucial protection
for women taking an active part in hostilities is afforded by limiting the means and methods of
warfare. Similarly, wounded, sick, shipwrecked and captured combatants, either women or men must
be treated humanly, with due compliance with fundamental guarantees as outlined in article 3
common to the Geneva Conventions.
Provisions of IHL offering specific additional protection to women include, for instance, article 14 of
the Third Geneva Convention which stipulates that women be treated with all the regard due to their
sex, meaning namely the provision of separate detention quarters and sanitary facilities for female
prisoners of war. Similarly, separate sleeping quarters must be provided to women who are interned,
and if necessary, only be searched by women.
International humanitarian law scheme also responds to women's particular considerations of privacy
and their medical and physiological needs as these are often related to their child-bearing role. Hence,
expectant mothers are offered particular protection and respect through the Fourth Geneva
Convention, especially in situations of occupation.

Children and War

All members of a society suffer the consequences of armed conflicts in their area. However, the
magnitude of these consequences for vulnerable groups, especially children, is often poorly
understood. Children are faced with many aspects of war and the consequences affect both their
physical and psychological development. Children who have become amputees as a result of antipersonnel mines, orphans as a result of the war, or soldiers to survive, as well as those who are victims
of sexual abuse or have been forced into slavery are reminders of the urgency for the international
community to act. In 1989, the member States of the United Nations agreed to further develop the
rules established for the protection of children. They culminated in the Convention on the Rights of
the Child1 , which provides a wide range of rights for persons under the age of 18. Every child,
regardless of social, economic, political or other status has the right to these rights.
Issue
The reasons for the direct participation of children in armed conflicts are many, with a variety of roots
and causes. Extreme poverty, dispersal or loss of family, belonging to an armed political, religious or
ethnic group, presence of a conflict zone nearby, urban violence, and the absence of a viable social
support structure are some of the reasons that explain the involvement of children. For children left to
themselves while the hostilities rage on, the army represents an opportunity to obtain shelter, food,
stability, and a sense of belonging, indeed social status, but most importantly a chance to survive.
Children are easily manipulated and obedient, with no awareness of the potential danger of their acts.
Therefore, cruel and atrocious acts may be committed without reluctance, especially when the
perpetrators are under the influence of illegal substances. Since they are small and easily hidden,
children are often used as spies or messengers. Forced recruiting through kidnapping from schools,

14 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
refugee camps or family homes is one way to obtain affordable military forces to perpetuate the
conflicts. This recruiting method is also used to terrorize and exert pressure on the civilian population.
The proliferation of small arms fosters the participation of children in hostilities. Since this type of
weapon is light, it does not require special handling expertise, thus opening the door to the
participation of children of all ages in military operations. Children's involvement in armed conflicts
has major consequences for future development of the society. The conflicts erode public values and
the social, economic and legal structures required to adequately educate the youth who constitute the
area's future. In addition, the vulnerability of children becomes more evident and thus compromises
peace and stability for future generations. Serious psychological and physical trauma will persist well
after hostilities have ceased, and there are many obstacles to reintegrating children into a normal
lifestyle. One major problem involves rejection by their community or even their family circle.
Children who have served for an armed group are often stigmatized or outcast. Furthermore, the
process of reintegration and rehabilitation may prove more difficult for girls than for young boys.
Since girls are often victims of sexual abuse, rape, forced prostitution and unwanted pregnancy, they
are even more stigmatized and reluctant to seek help and uncover the root of the problem.
The threat of landmines is more serious for children. They become at greater risk when they play on a
mined field or when they walk along the edge of the road in search of wood or water. Furthermore, the
consequences of an explosion are greater for a child than an adult, not to mention the years of medical
treatment and psychological and physical support required.
Children are often left on their own following the death of one or more family members or following
mass displacement of populations that temporarily or permanently separate families. Alone, children
become more vulnerable and, to some extent, slaves to whoever will take them under their wing.
Legal instruments
International humanitarian law grants extended protection to children. In the event of international or
non-international armed conflict, children benefit from the general protection granted to civilians not
participating in the hostilities. In an international conflict, children are under the protection of the
Fourth Convention and Additional Protocol I, while in a non-international conflict, children also have
the right to the fundamental guarantees as stipulated in article 3 common to the four Geneva
Conventions and Additional Protocol II.
The special vulnerability of children is taken into consideration by 1949 Geneva Conventions III and
IV. The Additional Protocols of 1977 also provide for an additional special protection plan, applicable
in the event of international or non-international conflict. Based on article 77 of Additional Protocol I,
children shall be the object of special respect and shall be protected against any form of indecent
assault. The Parties to the conflict shall provide them with the care and aid they require, whether
because of their age or for any other reason.
The Additional Protocols were the first international instruments to deal specifically with the
participation of children in armed conflicts. While Additional Protocol I requires States to take all
possible measures to prevent the direct participation of children less than 15 years old in hostilities,
Additional Protocol II prohibits recruiting and direct or indirect participation in the conflict.
Additional Protocol I expressly prohibits the recruiting of children to armed forces and encourages the
Parties to first recruit those between 15 and 18 years old.

Protection of Civilians

15 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
The First World War brought unprecedented suffering to civilians. Civilian populations became the
targets of military attack, magnifying the problems of food and medicinal shortages caused by war
restrictions. The massive use of poisonous gases terrorized both combatants and civilians in what was
the largest theater of combat to date. Following the war, it was determined that the issue of the use of
poisonous gases would best be addressed through the development of a conventional framework. As a
result, the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other
Gases and of Bacteriological Methods of Warfare was adopted in 1925.
The draft International Convention on the Condition and Protection of Civilians of Enemy Nationality
who are on Territory Belonging to or Occupied by a Belligerent , which also arose out of the suffering
of civilians during the First World War, was presented in Tokyo in 1934 . Two categories of civilians
were to be protected by this instrument: enemy civilians on the territory of a belligerent and civilians
in the power of the enemy in occupied territories. However, the belligerents never put this draft into
effect.
The Second World War was a turning point, being characterized by the massive bombings of cities, air
raids, the systemic and colossal deportation and displacement of populations, generating massive
civilian casualties. The need to respond through international humanitarian law was abundantly clear.
Hence, the protection of civilians was made an international priority. Though not perfect, the 1949
Geneva Conventions established a solid basis of law governing those instances when military
considerations and humanitarian exigencies clash. The protection of civilians is therefore ensured in
armed conflicts of either international or non-international character.
Vulnerability of Civilian Population in Times of War
Civilian populations, being unarmed, offer little to no resistance to an armed and trained military
force. In addition, the theater of operations also often takes account of their homes. Armed conflict
has a particular effect on certain groups of people because of their special needs, mainly, women ,
children and the elderly. Even when hostilities have ceased, the environmental disaster or broken
infrastructures leave civilians in a desperate state of need where they are particularly susceptible to
famine and disease. Wounded, and sometimes mutilated populations try to find missing relatives and
rebuild their lives. In certain countries, civilians remain vulnerable many years after the conflict has
ceased due to explosive remnants of war.
In the event of conflict, the International Committee of the Red Cross maintains as much proximity
and contact with the civilian population as possible. It makes representations to the relevant
authorities to prevent or put an end to violations of humanitarian law, and to protect the life, health
and dignity of civilians and to ensure that the consequences of the conflict do not compromise their
future.
Legal considerations
The 1949 Geneva Conventions seek to alleviate the suffering of both combatants and noncombatants
during armed conflicts, together with extended protections offered by the two Additional Protocols.
The International Committee of the Red Cross (ICRC) is the principal humanitarian organization
carrying out many of the relief activities for victims of armed conflicts. The ICRC's work in
connection with international armed conflicts is based on the four Geneva Conventions of 1949 and
Protocol Additional I of 1977, which give it the right to carry out specific activities such as assisting
the wounded as well as sick or shipwrecked, visiting prisoners of war and providing aid for civilians.
In situations of civil war, too, the ICRC is entitled under article 3 of the Geneva Conventions to offer
its services to the warring parties, under strict impartiality and neutrality.

16 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
Protection of civilians is a basic principle of humanitarian law. Civilians who do not take part in
hostilities must not be attacked and must be spared and protected. The 1949 Geneva Conventions and
their Additional Protocols of 1977 contain specific rules to protect civilians. In situations that are not
covered by these treaties, civilians are protected by the fundamental principles of humanitarian law
and human rights law, as reflected by the Martens clause.
The basic rules of humanitarian law regarding the protection of civilians are listed below:
Civilians are not to be subject to attack. This includes direct attacks on civilians and
indiscriminate attacks against areas in which civilians are present.
There is to be no destruction of property unless justified by military necessity.
Individuals or groups must not be deported, regardless of motive.
Civilians must not be used as hostages.
Civilians must not be subject to outrages upon personal dignity.
Civilians must not be tortured, raped or enslaved.
Civilians must not be subject to collective punishment and reprisals.
Civilians must not receive differential treatment based on race, religion, nationality, or political
allegiance.
Parties to the hostilities must not use or develop biological or chemical weapons and must not
allow children under 15 to participate in hostilities or to be recruited into the armed forces.

Contemporary challenges for International Humanitarian Law

In contemporary armed conflicts civilians are the primary victims of violations of IHL committed by
both State and non-State parties. The nature of contemporary armed conflicts continues to provide
challenges for the application and respect of IHL in a number of areas, ranging from the classification
of armed conflicts to the use of new technologies. There is a need to understand and respond to these
challenges to ensure that IHL continues to perform its protective function in situations of armed
conflict.
The increasing complexity of armed conflicts has given rise to discussions over the notion and
typology of armed conflicts, including whether the IHL classification of conflicts into international
(IAC) and non-international (NIAC) is sufficient to encompass the types of armed conflicts taking
place today. The ICRC believes that to be the case, while recognizing that there is an increasing
number of different factual scenarios that may be classified as NIAC.
The interplay between IHL and human rights law continues to have practical consequences on the
conduct of military operations. The relationship between human rights law and IHL impacts issues
related to detention, as well as to the use of force, in both international and non-international armed
conflicts, as well as the extraterritorial targeting of persons.
In contemporary armed conflicts the protective scope of IHL remains of utmost concern. In many
situations States are unable or unwilling to meet the basic needs of civilians and in such situations
IHL provides that relief actions may be undertaken by other actors, including humanitarian
organizations, subject to the agreement of the State. However, there remain many obstacles to
humanitarian access, including military, political and security-related concerns, which hinder the
provision of assistance to civilians in need.
In recent years extraterritorial military operations have given rise to new forms of military presence in
the territory of a State and refocused attention on the rights and duties of an occupying power, the

17 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
regulation of the use of force in occupied territory and the applicability of the law of occupation to
UN forces. The responsibilities and tasks assigned to multinational forces have also evolved to
encompass a spectrum of operations including conflict prevention, peace-keeping, peace-making,
peace-enforcement and peace-building. The multifaceted nature of these operations means
multinational forces are more likely to use force and raises the question of when and how IHL will
apply to their actions.
A wide array of new technologies has entered the modern battlefield. Cyberspace has opened up a
potentially new war-fighting domain. Remote controlled weapons systems such as drones are
increasingly being used by the parties to armed conflicts. Automated weapons systems are also on the
rise, and certain autonomous systems such as combat robots are being considered for future use on the
battlefield. There can be no doubt that IHL applies to these new weapons and the employment of new
technology in warfare. However, these new means and methods of warfare pose legal and practical
challenges in terms of ensuring their use complies with existing IHL norms, and also that due regard
is given to the foreseeable humanitarian impact of their use.
Hostilities pitting non-State armed groups operating within populated areas against government forces
using far superior military means are also a recurring pattern, exposing civilians and civilian objects
to the effects of hostilities. The intermingling of armed groups with civilians, in violation of IHL, has
by some armies been used as a justification to by-pass the taking of all possible precautions to
minimize risks to civilians, as required by IHL. In this context, the effects of the use of explosive
weapons in densely populated areas on civilians and civilian structures continue to be of concern.
An ongoing challenge to the protection of civilians is the inadequate regulation of the availability and
the misuse of conventional weapons. Under the Geneva Conventions and customary international law,
States have an obligation to ensure respect for IHL. This includes a responsibility to ensure that the
arms and ammunition they transfer does not end up in the possession of persons who are likely to use
them to violate IHL. An Arms Trade Treaty, which the ICRC supports, is meant to address some of
those concerns.
A recent challenge for IHL has been the tendency of States to label as terrorist all acts of warfare
committed by non-State armed groups against them, especially in non-international armed conflicts.
While armed conflict and acts of terrorism are different forms of violence governed by different
bodies of law, they have come to be perceived as almost synonymous due to constant conflation in the
public domain. The use of the term terrorist act in the context of armed conflict causes confusion
between the two separate bodies of law and may lead to a situation where non-State armed groups
disregard IHL norms because of a perception that they have no incentive to abide by the laws and
customs of war. The designation of some non-State armed groups as terrorist groups also has
significant implications for humanitarian engagement and may impede humanitarian action.
IHL is continually challenged by the evolution of contemporary armed conflict. Achieving greater
protection for civilians in armed conflict is dependent on the respect, implementation and enforcement
of IHL. It is the constant priority of the ICRC to ensure that IHL is able to adequately address the
realities of modern warfare and provide protection to victims of armed conflict.

18 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW

Conclusion
The international system of protection of human rights in situation of internal violence has
deficiencies in the substance of the existing law and its application and enforcement . This is
especially true in internal conflicts with a low intensity of violence , such as situation of internal
disturbance and tensions. Given the aforesaid , in such situations human rights are seriously
threatened , particularly those of persons designated as political prisoners or political detainees.
At the moment , the international system is weak in the machinery of enforcement and relies heavily
upon the educational effects flowing from the existence of the rules provided by common Art.3 and
Protocol II.
It is necessary to develop an effective international surveillance organ, with sufficient authority to
oversee the application of the law, to investigate alleged or possible violations, to determine the facts,
and to take the necessary action to ensure the correction of the fault.
One can suggest that the problem be approached from the standpoint of human rights law and that use
should be made of the existing enforcement machineries , which on the universal level would be the
Human Rights Committee created by the International Covenant on Civil and Political Rights.
However, it is difficult to see how the Committee as it stands could have any control over internal
conflict management, if we take into consideration the following factors :

19 | P a g e

NATURE AND EVOLUTION OF INTERANTIONAL HUMANIATRIAN

LAW
a) the Committee can only consider applications from states , except in the very few instance when
states have accepted the right of individual applications under the Optional Protocol;
b) states act more for political than humanitarian considerations; and
c) the great majority of states have not accepted the competence of the Committee.
Finally , we can say that in writing as well as in teaching we should work towards further
improvement in the protection of human beings in internal armed conflicts as well as in internal
disturbance and tensions and for that towards a greater link between the two systems which are
inspired by the same objective: effective and complete protection of the human person in time of
armed strife and in times of tranquillity.

References
1. International Humanitarian Law and the Law of Armed Conflict, Antoine A. Bouvier
2. Implementation of International Humanitarian Law, Frits Kalshoven and Et Yves Sandoz
3. The application of international humanitarian law and human rights law to international
organizations, Gabriele Porretto & Sylvain Vit
4. Development and Principle of International Humanitarian Law, Jean Pictet
5. www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/ihl-human-rights/index.jsp
6. www.adh-geneve.ch
7. www.redcross.org/images/.../m4640079_IHL_HumanRights.pdf

20 | P a g e