Batch: Batch No.

Q: Protection of human rights during armed conflict?

This article's goal is to analyse international humanitarian law (IHL), human rights (HR), and
how well it works in current wars. The background and history of HR and IHL will also be
covered in this article. Then this article will go straight towards the armed conflicts, its two types
namely; International and non-International armed conflicts and legal definitions of combatants
and non-combatants. Changes like armed conflicts, IHL treaties (Geneva conventions, Hague
conventions and additional protocols) and the protection of the principles of international
humanitarian law by states are the main topics on which this article is based.
Despite the changes of time, the current progressive events in the modern world, and the increase
in interstate cooperation, war, and armed conflicts are still used as one of the main means of
achieving the goal and pursuing personal interests by states. Unfortunately, the consequences of
the war affect most of the innocent population. Even in today’s world, the rate of deaths of
civilians as a result of armed hostilities, the number of people forced to leave their homes, and
the need for humanitarian assistance are constantly growing. It is evident that, based on the
perception of the seriousness of the damage caused by the war, the foundation was laid for the
creation of international humanitarian law. Nevertheless, the current technological or other
changes in the modern world create new challenges and even give armed conflicts a different
direction.
“Human rights” is one of the most important concepts in our modern era. Activists, governments,
and corporations use it to draw on a collective understanding that all people deserve certain
rights and freedoms. No matter who a person is, where they’re from, what they believe, or how
they live, everyone has rights that cannot be taken away. Human society didn’t always believe in
universal human rights the way we do now. The first recorded example of anything close to
human rights comes from Cyrus the Great, a Persian king. When he conquered Babylon, he
established a set of basic rights for everyone. We can find those rights, which include freedom
from slavery and freedom of religion, written on a clay cylinder now housed in the British
Museum far from its original home. The Magna Carta, which became an official part of English
law in 1297, represents a major milestone for rights like due process and equality under the law.

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Centuries later, the Bill of Rights from the United kingdom lay another road map to modern
human rights.1 It is often during armed conflicts that human rights are infringed upon the most.
Therefore, over the years, experts have focused much attention on the formulation of instruments
aimed at alleviating human suffering during war and conflict. Today, three areas of modern
international law attempt to provide protection to victims of war: human rights law, refugee law
and humanitarian law.
“Humanitarian law” is a branch of international law that seeks to limit the effects of armed
conflict. Humanitarian law applies in armed conflict, restricting the actions of warring parties,
providing for protection and humane treatment of persons who are not taking part or can no
longer take part in the hostilities. Like international human rights law, humanitarian law protects
the lives and dignity of individuals, prohibiting torture or cruel treatment, prescribing rights for
persons subject to a criminal justice procedure, prohibiting discrimination and setting out
provisions for the protection of women and children. In addition, humanitarian law deals with the
conduct of hostilities, combatant and prisoner.
The concept of Humanitarian Law, that was to be followed during war, started to be codified.
Henry Dunant, a businessman, and Guillaume-Henri Dufour, army officer, are considered as the
fathers of this concept. When Dunant saw the aftermath of the war of Solferino in 1859, he wrote
the book to record his horrifying experiences, The Memory of Solferino. Later in 1864, Henri
Dufour chaired the Diplomatic Convention in Geneva, the original Geneva Convention. In this
conference he actively supported the ideas of Dunant to make the war bearable for the innocent
citizens. Their services did not end here. Earlier in 1863, together with Gustave Moynier, Louis
Appia and Théodore Maunoir, Dunant and Dufour founded the ‘Committee of Five’, an
international committee for the relief of the military wounded. This would become the
International Committee of the Red Cross in 1876. 2 The Hague Convention, Geneva
Conventions and its additional protocols, they all basically provide the rights to the victims of the
wars, civilians and the prisoners of the wars.
International Humanitarian Law has its direct roots with International Human Rights. The targets
that were aimed to achieve by the establishment of IHL was to look after human rights even

1 https://blogs.icrc.org/ilot/2017/08/07/origins-international-humanitarian-law/

2 https://en.wikipedia.org/wiki/Hague_Conventions_of_1899_and_1907#:~:text=The%20Hague
%20Conventions%20of%201899%20and%201907%20were%20the%20first,during%20the%20American
%20Civil%20War

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during war. Human rights are the fundamental rights of the people. There has been the Universal
Declaration of Human Rights by passing various resolutions and treaties related to human rights,
IHL is also among this long list. Passing of these resolutions does not mean that only those rights
are to be provided which are mentioned in them, but also the rights that have become the part of
the customary international law which is binding on all the states.
Humanitarian law comprises various treaties and over 600 articles, all about explaining the
ground rules of the war. The summary of the basic principles are, distinction, proportionality and
precautions in attack. Distinction is a principle under international humanitarian law governing
the legal use of force in an armed conflict, whereby belligerents must distinguish between
combatants and civilians. The principle of proportionality prohibits attacks which may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or
a combination thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated. In order to protect them, international humanitarian law requires that, in
the conduct of military operations, constant care shall be taken to spare civilians and civilian
objects. This is what is called the principle of precaution.
Armed conflict means a state of war or a conflict which involves armed operations which by
their nature or extent are likely to affect the application of treaties between States parties to the
armed conflict or between a State party to the armed conflict and a third State, regardless of a
formal declaration of war or other declaration by any or all of the parties to the armed conflict.
International armed conflicts are conflicts between States. The type of armed conflict that
involves two or more high contracting parties is called International Armed Conflict. The
definition of International Armed Conflict in the clauses of Geneva Conventions includes all
forms of occupation, aggression, and the fight for self-determination. The whole situation of
declaring a situation an international armed conflict is described in the Common Article 2 of the
Geneva Conventions. Common Article 2 to the four 1949 Geneva Conventions provides that
they ‘apply 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’. Non-international armed conflict or Internal Armed Conflict is a type of armed conflict
that occurs within a state. In which state military forces on one side and non-governmental
organised groups or groups fight on the other side and sometimes this conflict can also take place
between non-governmental militant groups, but the most important point is that for International

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Armed Conflict it is necessary that there is no direct or indirect support of other states or states.
The Common Article 3 of the Geneva Convention defines Non-International Armed Conflict.3
Non-combatant is a term of art in the law of war and international humanitarian law to refer to
civilians who are not taking a direct part in hostilities;[1] persons, such as combat medics and
military chaplains, who are members of the belligerent armed forces but are protected because of
their specific duties (as currently described in Protocol I of the Geneva Conventions, adopted in
June 1977); combatants who are placed hors de combat; and neutral persons, such as
peacekeepers, who are not involved in fighting for one of the belligerents involved in a war. This
particular status was first recognized under the Geneva Conventions with the First Geneva
Convention of 1864. Whereas, combatant is the legal status of an individual who has the right to
engage in hostilities during an armed conflict. The legal definition of "combatant" is found at
article 43(2) of Additional Protocol I (AP1) to the Geneva Conventions of 1949. It states that
"Members of the armed forces of a Party to a conflict (other than medical personnel and
chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they
have the right to participate directly in hostilities."[1] Consequently, on the other hand
combatants, as a rule, are legal targets themselves for the opposite side regardless the specific
circumstances at hand, in other words, they can be attacked regardless of the specific
circumstances simply due to their status, so as to deprive their side of their support.
The four Geneva Conventions, their Additional Protocols, and the 1907 Hague Regulations are
the main IHL treaties. Hague Conventions and Geneva Conventions are prominent conventions
regarding human rights during war. The Hague Conventions of 1899 and 1907 were the first
multilateral treaties that addressed the conduct of warfare and were largely based on the Lieber
Code, which was signed and issued by US President Abraham Lincoln to the Union Forces of the
United States on 24 April 1863, during the American Civil War. 4 Members of the armed forces
at sea who were injured, ill, or shipwrecked received international protection in The Hague in
1899. In 1929, prisoners of war were also given Geneva Convention protection. The Hague
Conventions of 1899 and 1907 further set out ground rules for warfare and regulated the usage of
the weapons in the warfare.

3 https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions

4 https://ihl-databases.icrc.org/ihl/WebART/470-750044?OpenDocument

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The Geneva Conventions and their Additional Protocols form the core of international
humanitarian law, which regulates the conduct of armed conflict and seeks to limit its effects.
They protect people not taking part in hostilities and those who are no longer doing so. 5 The
original Geneva Convention of 1864 was signed to reduce the effect of war on the non-
combatants, i.e. civilians. The Geneva Conventions outline in great detail the fundamental rights
of prisoners of war (both civilians and military personnel), establish protections for the injured
and ill, and offer protections for civilians within and around a war zone. In addition, the Geneva
Conventions highlight the rights and protections granted to non-combatants. 196 countries have
signed the 1949 conventions. The use of weapons of war is dealt with by the Geneva Protocol,
which deals with chemical and biological warfare6. On Henry Dunant's suggestion, and with the
participation of diplomats from nearly all of the countries at the time, the first treaty on the
protection of military victims of battle was drafted and signed in Geneva in 1864. The
conference was organised by the Swiss government. Four Geneva Conventions were adopted in
1949 and are still in effect today; each of them deals with the protection of a particular group of
people who are not, or are no longer, participating in hostilities. The four Geneva Conventions'
main goal was to lay down the guidelines that must be observed during international armed
conflict. The Geneva Conventions exclusively deal with prisoners and non-combatants in times
of conflict. As of now, there are four main Geneva Conventions,
First Convention : on the care of the wounded and sick members of armed forces in the field,
second convention : on the care of the wounded, sick and shipwrecked members of armed forces
at sea, third Convention: on the treatment of prisoners of war, fourth convention : on the
protection of civilian persons in time of war. And the three additional protocols deal with, the
conduct of hostilities, the non-international armed conflicts and added Red Crystal as an
additional emblem, along with Red Crescent and Red Cross.
Regarding the protection of victims of international conflicts, Protocol I was added to the
Geneva Conventions in 1977. According to Protocol I, "armed conflicts in which peoples are
fighting against colonial domination, alien occupation, or racist regimes" are to be regarded as
international conflicts7. Protocol II establishes specific international laws that aim at improving
5 https://www.humanrightscareers.com/issues/the-concept-of-human-rights/

6 https://www.lawinsider.com/dictionary/armed-conflict

7 Geneva Conventions - Wikipedia

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protection to those who are victims of internal armed conflicts that happen within the boundaries
of one nation8.
According to article 35 of the International Armed Conflicts (Protocol 1) 9 , the right to choose
means of warfare in a combat is not unlimited, moreover, the use of weapons to cause
superfluous injuries or unnecessary sufferings and damage to the environment is prohibited.
Superfluous injury and unnecessary sufferings refers to the condition where the combatant
becomes unable to fight, i.e. hors de combat.The Preamble of the 1868 St Petersburg Declaration
banned such ammunition used for the purpose of aggravating unnecessary or superfluous
sufferings. It is clearly mentioned in this declaration that the purpose should be weakening the
enemy and if by making the enemy incapable of combat fulfils the military purpose, then killing
or causing further sufferings would be unjustified and inhumane.
It is submitted that International humanitarian law consists of laws and rules that are created by
treaties or tradition During times of armed conflict. The goal of international humanitarian law,
sometimes known as the law of armed conflict or the law of war, is to strike a balance between
humanitarian considerations and the demands of battle. By reducing the harm it causes to people
and limiting its destructiveness, it holds warfare to the rule of law. IHL covers two crucial topics:
Protection and support for individuals impacted by the fighting and Regulation of military tactics
and techniques. On the other hand In armed conflicts, IHL cannot ensure humanity. This is true
because States are hesitant and unable to accept mechanisms that effectively enforce it, which
would be astonishing for a situation - armed conflicts - that would not exist if international law
was already consistently and effectively applied. International law is also not sufficiently
respected. Additionally, this is true since IHL rules cannot always guarantee everyone's
protection.

8 Protocol I - Wikipedia
9 Protocol II - Wikipedia