Post by: Wendy Wrobel
On October 20th, students had the honor to hear from two veterans and current Red Cross employees, Randall Bagwell and John Balouziyeh, in a discussion on International Humanitarian Law.
International Humanitarian Law (IHL) is a set of rules which seeks to limit the effects of armed conflict. This is meant to protect those who are not currently, or never have been participating in said conflict, as well as regulating the methods of conflict.
The Law of Armed Conflict is under the umbrella of Public International Law, surrounded by the UN System, Human Rights Law, Refugee Law, and International Criminal Law. IHL is customary law, expanded by treaty law, created within the four Geneva Conventions, and various specific weapons treaties. The Lieber Code was and is a foundational document for IHL, IHL was created out of the outgrowth of fundamental Constitutional values, of the inherent right of the individual. Today, we occasionally see the effect of judicial decisions on IHL, as we saw in suits related to Guantanamo, a dark part of our nation’s history.
What makes the Law of Armed Conflict unique, is that there is no overarching authority holding states accountable, only the states themselves. While war is a political declaration, armed conflict is based upon facts determining whether IHL applies. Traditionally, law had to be declared for the law of war to apply, this is not the case with IHL.
IHL is only applied in a time of armed conflict, it is binding on state and non-state actors, and it governs relations between parties during that armed conflict. No derogation from the law is allowed, and it has an unquestionable extraterritorial application. This is unlike Human Rights Law, which always applies, and is only binding on states.
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.” ICTY, The Prosecutor v. Dusko Tadic, IT-94-1AR72, Appeal Chamber, Decision, 2 October 1995.
IHL has four fundamental principles: military necessity for the conflict, distinction between civilians and their objects and combatants and their military objectives, proportionally requires advantage to outweigh anticipated loss, and it is meant to limit unnecessary suffering. Unnecessary suffering implies that there is some necessary suffering in armed conflict, but acts should not be taken to specifically harm humans, there must be a greater purpose. Within Armed Conflicts, humans have statuses: civilians and combatants. A civilian does not participate in hostilities and are entitled to protection. Combatants actively participate in hostilities and may be targeted and killed at any time. Everyone is protected under IHL (pursuant to the fourth Geneva Convention), no one is without protection in some way shape or form. Property is also protected under IHL, including medical, cultural, and religious sites.
What barely existed even a century ego, is incredibly utilized today. International Humanitarian Law will hopefully continue to expand, protecting the rights of all within and outside of conflict; not allowing countries to sidestep their humanitarian duties through loopholes.
This post was written by a Center for Global Justice Student Staff member. The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice.