Humanitarian Law of Armed Conflict: Problems of Applicability
International humanitarian law is applicable in times of armed conflict and is intended to protect the victims. The extent to which it provides that protection varies according to whether the conflict is international or non-international. IHL contains clear definitions of the situations which it covers. States at war with each other will often have differing interpretations of the facts in what one describes as occupation, the other will regard as liberation.
The main purpose of IHL being to protect the victims, it is necessary to go beyond the political obstacles relating to its applicability and concentrate on respect in practice for its provisions. In terms of applicability, the golden rule contains a series of conditions defining the specific situations for which the rule has been created. When all of the required, stated conditions are present, only then does the rule apply.
There are rules within it whose application depends on more complex factors involving conditions or criteria which may be medical, psychological or subjective. One begins to see the difficulties sometimes involved in deter-mining whether certain of the required conditions are present. In case of disagreement between states, it is possible to take the matter to court where a judge will pronounce on the law and determines which rules are applicable, that is; he will determine for which rules the conditions of application are present.
In the absence of binding jurisdiction in Public International Law, applicability is determined in much the same way in international law inasmuch as there are conditions which must be present for a rule or body of law to be applicable. This is true of international humanitarian law, which forms part of public international law.
In the application of IHL a distinction is traditionally made in public international law between the law of peace and the law of war. This simple distinction emphasizes the existence of a special body of law to be applied to war and indicates the general conditions required for its application the existence of a war.
In circumstances of International Armed Conflict initially, the application of IHL required that there be recognition by the States involved that a state of war existed, and that recognition be manifested through a declaration of war the drafters of the Conventions relaxed this condition, which had allowed States to refuse to implement the rules of IHL on the pretext that there was no war because there was no declaration of war, and retained only objective and simple conditions.
For the case of Non-international Armed Conflict, while it is a relatively simple matter to determine the existence of an international armed conflict, determining the existence of a non-international armed conflict presents several difficulties. In the 1949 Geneva Conventions, there is only one article referring to this type of situation.
If it is a case of Mixed Conflict, international relations have developed to the point where that which affects one State also affects the other. The fabric of alliances and sympathies within each bloc has grown to the extent that there are many States which cannot engage in a conflict without taking with them a whole series of allied or friendly States.
Problems of Applicability
IHL has evolved more rapidly than our Way of Thinking
The problem of applicability stems from rapid way of thinking than application of IHL which above all protects the victims of international conflicts; it provides only a minimum of protection for the victims of internal conflicts. In the years since the Second World War, traditional international wars have been rare but internal conflicts innumerable.
Prohibition of the Use of Force
The use of force by a State apart from self-defense and concerted action by the United Nations is prohibited by the UN Charter. When a conflict breaks out, there is, in principle, normally an aggressor and a victim of aggression. But the distinction is often difficult and superficial because armed conflicts are rarely spontaneous. They usually follow a slow deterioration of peaceful relations between States.
No State readily accepts being called an aggressor. It might be said that, in practice, this question does not affect IHL because the question of who is the aggressor is not taken into consideration when the conditions for application are being studied. But prohibiting the use of force has made States wary of any action on their part which could have the appearance of aggression.
When the Belligerents’ Interpretations Agree
The Parties to an armed conflict may all feel that they are not taking part in such a conflict. There exists confusion, voluntary and otherwise, about the concept of armed conflict under IHL. Parties to a conflict speak of a ‘police action’ or the existence of ‘differences’ and seek to settle those differences among themselves without the intrusion of public international law or international organizations.
The Argument that Diplomatic Relations are Continuing
Recalling Clausewitz’ theory that war is only the continuation of diplomacy by other means, it is a fact that many States do not sever diplomatic relations with each other when they engage in armed conflict. The dialogue’ between them continues on several levels: by turns with the iron fist and the velvet glove.
The Neutrality Argument
It can happen that a party to an internal or mixed conflict makes a military incursion into the territory of a third State in order to attack troops who have sought refuge there or to make a demonstration of force. The third State may consider it’ self neutral and refuse to apply IHL on the grounds that it is not engaged in armed conflict with the State making the incursion but merely defending its territory.
The Sovereignty Argument
Sovereignty here is meant internally, ‘in matters which are essentially within the domestic jurisdiction of any state’ (UN Charter, art. 2 (7)). Sovereignty is quite regularly flourished when it comes to the question of whether to apply the provisions of Article 3, applicable to non-international armed conflict, that is, when the legitimacy of a government is contested by another party. The sovereignty argument often means that the State wishes to affirm its sovereignty at all costs because it is being challenged, is shaky or simply non- existent
In the absence of an effective international police force, the subjects of international law are always tempted to neglect their obligations and respect for the law has to depend on the risk of real penalties. It is possible to conceive a specialized and standing forum made up of the States Parties to the Conventions which would be competent to classify conflicts and enjoin the parties to those conflicts to respect IHL. As we have seen, this is the type of objective set out in the UN Charter (Shraga, 1998). The Charter and the Geneva Conventions are treaties which more or less the entire international community has signed. By becoming party to the latter, States undertake the twofold obligation of respecting and ensuring respect for these treaties
Durr, O. (1987). Humanitarian Law of Armed Conflict: Problems of Applicability. Journal of Peace Research, 24, 3, 263-273.
Shraga, D. (1998). The United Nations as an actor bound by international humanitarian law. International Peacekeeping.
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