Day 4: International Humanitarian Law

DAY 4: International Humanitarian Law

DATE: March 7, 2024

MODERATOR(S): Iboro Akpan, Marvel Essien

TIME: 5PM

SPEAKER: Joanna Titus

Biography of the speaker

Persuasive advocate, team player and ardent legal researcher called to the Nigerian Bar with practice area spanning across but not limited to corporate and commercial law, dispute resolution, international humanitarian law, international criminal law, International human rights law and ICT law. Her love for the international arena spurred her to be a program Director and a Co-host in the Human Rights Café, an online platform that discusses human rights and emerging international law trends.

Definition

International Humanitarian Law is usually called the law of war. It protects civilians, properties, armed forces, et al. and ensures that certain rules and guidelines are followed during war. It usually applies during times of war.

It is that law that seeks to protect those who are not actively involved in combat or who fall within the set of persons to be protected. Such persons include: the wounded.

International Humanitarian Law regulates the means and methods used during war. The means include the ammunition or weaponry used during the war, whereas, the methods refers to the manner or ways in which these victories are achieved.

The legal framework work of International Humanitarian Law 

The legal framework work is evidenced by Article 3 of the Geneva Conventions of 1949. The Geneva conventions provides some laws of war which are binding on only the states which have ratified the convention or agreed to it. Therefore, not all states apply the Geneva Convention.

However, it is important to note that the Customary International Humanitarian Law rules apply to other countries which are not signed to or bound by the Convention.

Applicability of the Law of war

International Humanitarian Law is applicable during the times of war. It becomes binding when there's a conflict between states or possibly within the state. It should be noted that International Humanitarian Law respects the autonomy of states, thus, it does not contradict with the domestic laws of any state.

In war, International Humanitarian Law and domestic laws are applied. 

In cases where there's a conflict between International Humanitarian Law and domestic laws of a state, the latter will prevail.

International Humanitarian Law emphasises the humane treatment of people during international or internal conflict regardless of the sex, the race or any other demarcating factor. 

Types of Armed Conflicts

There are two types of International Humanitarian Laws:

• Non International Armed Conflict (NIAC)
• International Armed Conflict (IAC)

Non-International Armed Conflict 

This type of conflict is usually between a group of armed forces and an organized group within the same state. Therefore, the organized group is borne in the very state and combats with the armed forces or government of the same state.

It is not one that crosses the boundary of the state into a territory of another. During this period, Article 3 of the Geneva Convention applies.

Non-International Armed Conflict ends after the peaceful settlement has been achieved or when the opposing forces are at unity.

International Armed Conflict 

This conflict occurs when there is a war between states. States in this scenario are a quintessence of countries and not entities in a country. That is, states here refer to Nigeria, Cameroon, Coté d'Ivoire, etc. and not, Akwa Ibom, Lagos, Zamfara, etc.

The scope of the International Armed Conflict is referenced in Article 2 of the Geneva Conventions.

International Armed Conflict comes to an end at the close of military operations.

It must be noted that, regardless of the fact that the conflict (either international or non-international) has come to an end, International Humanitarian Law may still apply if there are Prisoners of War (POW). The law covers the Prisoners of War and will stop application upon the release of such prisoners.

Principles of Armed Conflict

The principles of Armed Conflict include, but are not limited to, the following:

• Distinction
• Proportionality
• Precaution

Distinction

This principle requires that the active participants recognise the difference between combatants and civilians: military objectives and civilian objectives. Objectives here refer to materials such as buildings or infrastructure.

Whenever there's confusion on whether a person, during war, is a civilian or combatant, it is the general rule of International Humanitarian Law to assume such person a civilian until proven otherwise. Combatants are protected and shielded by an immunity from being prosecuted for taking part in lawful acts of war. Lawful in the sense that the acts were regulated by the Laws of war, however, this immunity is retracted if an unlawful act is done such as killing a passive civilian.

However, a civilian can lose his status as a civilian and the killing of such civilian will not be seen as an unlawful act of war. In order for the civilian to lose his status, there are criteria that must be met.

Loss of civilian status

Direct participation: participation is said to be direct when the civilian does some form of act which directly affects the military objectives or the operation of the military. For example: a group of civilians gathering to shield another combatant from being killed or picking up a gun to shoot at combatants (not in self-defence). The military operation that has been thwarted is that of killing the combatants.

Direct causation: the act done by the civilian must have a direct link to the effects suffered by the military or the combatants. Example: the combatant that was shielded by the civilian group can begin to shoot at the military leading to the death of many military members.

Belligerent method: the act that was done was designed and intended to cause a detriment or pose a delay to the military.

Example

When there's a war, a certain group moves to take down another; a group of civilians prevent that from happening by blocking the group from taking action, it is safe to assume that they are no longer civilians.

Types of objectives

• Military objectives : they benefit the military 
• Civilian objectives : they benefit the civilians
• Dual objectives : they benefit both the military and civilians.

Proportionality

The combatants before attacking any objective would have to weigh the cost of or the number of lives that would be lost from the destruction of such objective. If the loss of the lives of civilians nearby would be greater than that of the combatants, then the objective should be abandoned.

Precaution

In tandem with proportionality, precaution posits the carefulness before the destruction of a said environment. 

Summarily, it should be restated that the Laws of War apply only during times of war and it is not only limited to the Geneva Conventions.