REGULATION OF HUMANITARIAN AND WAR

LAWS A NECESSITY IN THE WAKE OF GLOBAL

POWER SCINEARIO

Assignment For Topic No. 02

April – 2024

Submitted by:
CHINMAYA DAS,
REGN. NO – 2361811020

Subject – Law and Justice in a Globalizing World (CPII-03)

Faculty – Ms. Anwesha Tripathy

Assistant Professor

SOA National Institute of Law

LLM – CCL, 2023-24

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 Introduction
Homo Sapiens1can be identified as the most aggressive animal species on earth.Therefore,
the history of mankind is full of conflicts and bloodsheds. Wars, Riots, Armed Conflicts
and Struggles had started from the beginning of the civilization. Karl Marx once said that
‘the history of mankind is the history of class struggle’. 2 If this definition is enhanced in
another perspective, we can interpret that ‘the history of mankind as the history of war.’

International Humanitarian Law or Jus in Bello,3 is the law that governs the way in which
warfare is conducted.4 International Humanitarian Law is a set of international rules
established by treaties & customs. IHL protects persons and properties that are or may be,
affected by international or non-international armed conflicts and limits the rights of the
parties to a conflict to use means and methods of war fare of their choice. The main
purpose of International Humanitarian Law is to limit the suffering caused through war, by
protecting and assisting its victims as far as possible.5

There is no humanitarian value in a war. In that sense, Jus in Bello is not a law which is
concerned about protecting Human Rights in wartime. It’s just a law, which regulates the
adverse effects of armed conflicts. As a part of the International Law, the International
Humanitarian Law (Jus in Bello) seeks for humanitarian reasons to limit the effects of
armed conflict.6 It does not regulate whether a State may use force; this is governed by an
important, but distinct, part of International Law set out in the United Nations Charter. 7
International Humanitarian Law covers two areas. First one is, the protection of those who
are not, or no longer, taking part in the fighting and the Second one is, restrictions on the
means of war fare in particular weapons and the methods of warfare, such as military
tactics.

In today’s world, IHL is being challenged by many levels. The increase in asymmetric war
fares, the proliferation and fragmentation of parties involved in armed conflicts and proxy
wars complicate and confuse the relevance and application of the principles of
International Humanitarian Law.8

1
Homosapiens, (Latin:“wiseman”) the species to which all modern human beings belong
2
Karl Marx and Friedrich Engels, The Communist Manifesto (1848)
3
Jus in Bello is a Latin term which means ‘the Law of War’(Jus=Law/Bello=War)
4
International Humanitarian Law and International Human Rights Law Similarities and Differences-ICRC
5
Jus ad Bellum and Jus in Bello-ICRC
6
What Is International Humanitarian Law? Advisory service on International Humanitarian Law-ICRC
7
ibid
8
Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, ICRC 2016, p.9

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 Historical & Religious background of International Humanitarian Law

The written history of International Humanitarian Law goes back to the era of the
Sumerian civilization.9 The Sumerian-Hamurabi Code, written on clay tablets,10
mentioned the ethical conducts in warfare. Almost every civilization that originated in East
or West, there is convincing evidence of rules and customs used in warfare.

The Vedas were written during the period of 1700–1100 B.C.E in India. According to the
Veda, Hindus believe that it is right to use force in self-defence. The Rig Veda sets down
main rules of war which must be obeyed in a battlefield. These rules are, “do not poison
the tip of your arrow, do not attack the sick or old, do not attack a child or a woman, do
not attack from behind.”11 Within these rules, we can identify the principle of distinction,
and the principle of proportionality.

In the 6th century of B.C.E, the Buddhist philosophy discusses a concept, ‘Aththupanayaka
Dhamma Pariyaya’ which means ‘treat every being like as yourself.’ The Gauthama Sam
Buddha once said that “Everybody trembles at punishment; everybody fears death. Having
made the comparison with oneself, let one not kill, nor cause another to kill.”12 According
to the fundamental Buddhist philosophical principles of ‘Meththa’ (Mercy) ‘Karuna’
(Kindness), and ‘Avihinsa’ (Non-violence), Buddhism never encourages or justifying the
War.

However, in some religious philosophies refers to justified War. Islam is such a kind of
religious view. It refers to a ‘Sacred War’ (Jihad).13 Islamic laws of war are derived
predominantly from the Al-Qur’ān. Islamic law embodies many of the principles of
modern International Humanitarian Law. According to the Qur’ān, Civilians and non-
combatants must not be deliberately harmed during the course of hostilities. 14 Prisoners of
war or persons who no longer directly participate in hostilities should be treated
humanely.15

Accordingly, all these religious philosophies have contributed in significant ways to the
development of modern International Humanitarian Law.

9
4500BC–1900B.C.E
10
Code of Ur-Nammu
11
Rig Veda-6-75:15
12
Dhammapada:Danda Waggaya–verse 129/130
13
Jihad=a struggle or fight against the enemies of Islam
14
Qur’ān 2:190
15
Qur’ān 2:192

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 The emergence of modern International Humanitarian Law

Henry Dunant16 is the founder of modern Humanitarian Law. In 1862 he published a book
named, Un souvenir de Solferino (A Memory of Solferino), based on the Battle of
Solferino between Austria and France.17 In his book, he made two main proposals. First,
independent relief organizations should be established to provide care to wounded soldiers
on the battlefield and second, an international agreement should be reached to grant such
organizations the protection of neutrality. As a result of these two proposals in 1863
‘International Committee for Relief to the Wounded’ was established. It was the first step
of the ‘International Committee of Red Cross’. In 1864 the First treaty of International
Humanitarian Law was prepared. This treaty was the foremost source of the ‘Geneva
Conventions.’ On 22 August 1864 twelve nations had been signed the first ‘Geneva
Convention’, agreeing to guarantee neutrality to medical personnel, to expedite supplies
for their use, and to adopt a special identifying emblem (red crossona white background).
At the ‘Geneva Diplomatic Conference’ in 1949, the four conventions were combined.
Later, in 1977 two additional protocols were introduced for the conventions.

In1863, Francis Lieber18 made the ‘Lieber Code’.19 This code of ethics was used during the
American Civil War by the US military.20 Though, the ‘Lieber Code’ was created
simultaneously to the ‘Geneva Conventions’ the documents do not have an
interconnection. The main sections of the ‘Lieber Code’ concerned about the limitation of
methods in warfare, military jurisdiction, treatment of captured enemies, and prisoners of
war. The document insisted upon the humane, ethical treatment of populations in occupied
areas.

The ‘Hague Conventions’ emerged from the ‘Hague Peace Conferences’ in 1899 and 1907
at the Netherlands.21 ‘Hague Conventions’ as opposed to the ‘Geneva Conventions’, which
are concerned with the treatment of personnel and civilians, mainly detail the permitted
conduct for war. The core object of the ‘Hague Law’ is limiting the choice of means and
methods of conducting military operations.

16
Henri Dunant (1828-1910), was a Swiss humanitarian, business man and social activist
17
The Battle of Solferino on 24 June 1859 resulted in the victory of the allied French Army under Napoleon
III and Sardinian Army under Victor Emmanuel II against the Austrian Army under Emperor Franz Joseph I.
18
Francis Lieber (188-1872), was a Professor of the Colombia College in NewYork
19
Instructions for the Government of Armies of the United States in the Field.24 April 1863
20
The Civil War between Northern States and Southern States (1861-1865)
21
Hague Peace Conferences, Oxford Public International Law

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 Right to War and Law of War: Jus ad Bellum & Jus in Bello:

The Jus ad Bellum22 or Jus Contra Bellum23 does not seek to prevent the use of force
between States. However, the term of Jus ad Bellum is used to describe the law on the use
of force and as well as regulating the using of force. Jus ad Bellum is described in Article
2(4)24 and Article 5125 of the United Nations’ Charter. In Article 2(4), ‘All members shall
refrain in their international relations from the threat or the use of force against the
territorial integrity or political independence of any state, or any other manner inconsistent
with the purposes of the United Nations,’26 The core objective of this article is to ensure
the global peace and discourage the use of force between sovereign state parties. However,
according to Article 51, ‘Nothing in the present Charter shall impair the inherent right of
individual or collective self defence if an armed attack occurs against a Member of the
United Nations.’27 This article justifies the reasonable use of force. Accordingly, Jus ad
Bellum has two major perspectives. In one hand, Jus ad Bellum is the law which prevents
starting a war, on another hand, it legalized the starting warfare for a reasonable manner.

Jus in Bello is the set of laws that comes into enforcing once a war has begun. It is the law
of armed conflict. The purpose of jus in Bello is to protect the victims of armed conflicts
and regulate hostilities based on a balance between military necessity and humanity. 28 The
law of armed conflict has been codified and developed to regulate humanitarian issues in
the time of armed conflict; it aims to protect persons not or no longer taking part in
hostilities (hors de combat)29 and to define the rights and obligations of all parties to a
conflict in the conduct of hostilities.30 Jus in Bello defines how to do warfare with
minimum damage.

Accordingly, International Humanitarian Law does not describe the right to engage in war.
It only considers how to protect humanity in an armed conflict.

22
Jus ad Bellum (Latin)=Right to War
23
Jus Contra Bellum (Latin) = Right to engage in War
24
UN Charter article 2(4)-all members shall refrain in their international relations from the threat or the use
of force against the territorial integrity or political independence of any state, or in any other manner in
consistent with the purposes of the united nations
25
UN charter article 51-“nothing in the present charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security…”
26
Article 2(4)-charter of the United Nations
27
Article 51-charter of the United Nations
28
Nils Melzer, supra,p.17
29
hors de combat-Hors de combat is a French term used in diplomacy and international law to refer to persons
who are incapable of performing their ability to wage war.
30
Violence and The Use of Force–ICRC p.10

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 Sources of International Humanitarian Law:
International Humanitarian Law is one of the main branches of International Law.
According to Article 38(1) of the Statute of International Court of Justice (a) international
conventions, (b) international customs, (c) the general principles of law recognized by
civilized nations, (d) judicial decisions and the teachings of the most highly qualified
publicists of the various nations are the main sources in international legal regime.

I. Treaty Laws
International Humanitarian Law is one of the most densely codified branches of
InternationalLaw.31 Treaty-based IHL can be classified into three major streams: ‘Geneva
Law’, ‘Hague Law’ and modern ‘New York Regime’ are these three streams.

a) Geneva Law

A major part of International Humanitarian Law is contained in the four Geneva

Conventions of 1949. Almost every state in the world has agreed to be bound by them.
The Conventions have been developed and supplemented by three further agreements: the
1st and 2nd Additional Protocols of 1977 deal with the protection of victims of armed
conflicts and 3rd Additional Protocol of 2005 introduced a common emblem for ICRC.

The Law of Geneva mainly focuses on the protection of the person in a combat situation.
Accordingly, the 1st Geneva Convention focused on the Protection of Wounded and Sick,
2nd Geneva Convention focused on Protection of Wounded, Sick and Shipwrecked, 3 rd
Geneva Convention focused on the treatment of Prisoners of War (POWs) and the final,
4th Geneva Convention focused on Protection of Civilian Persons. Common Article 2 of
the Geneva Conventions, interprets the application of Geneva Conventions in international
armed conflicts. Common Article 3 describes the application of Geneva Conventions in
non- international armed conflicts.

As supplementary documents for the Geneva Conventions, the Additional Protocol I

discusses on the applicability of International Humanitarian Law in International Armed
Conflicts. Additional Protocols II clarifies the application of International Humanitarian
Law in Non-International Armed Conflicts and Additional Protocols III introduced a
universally recognized emblem (Red Crystal Emblem) for ICRC.

31
Nils Melzer,supra,p.21

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 b) Hague Law

The Hague Conventions of 1899 and 1907 are series of international treaties and
declarations negotiated at two international peace conferences at The Hague in the
Netherlands. The core object of the Hague Law is limiting the choice of means and
methods of conducting military operations. In 1946 the Nuremberg International Military
Tribunal32 stated with regard to the Hague Convention on land warfare of 1907: "The rules
of land warfare expressed in the Convention undoubtedly represented an advance over
existing International Law at the time of their adoption...by 1939 these rules were
recognized by all civilized nations and were regarded as being declaratory of the laws and
customs of war"33

International Humanitarian Law also includes a series of other treaties which belong to
Hague Law regime relating on limitation of means and methods in combat such as, the
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases,
and of Bacteriological Methods of Warfare-1925, the Convention on Protection of Cultural
Property during armed conflict - 1954, the Biological Weapons Convention - 1972, the
Convention on Conventional Weapons - 1980, the Convention on Certain Conventional
Weapons- 1983,the Convention on Chemical Weapons - 1993, the Ottawa Convention on
anti-personnel mines - 1997, and the Convention on Cluster Munitions - 2008.

c) New York regime

In the 1960s and 1970s, the United Nations promotes the law of armed conflict, under the
heading‘ Human Rights in Armed Conflicts’. This discourse made an important
relationship between International Humanitarian Law and International Human Rights
Law.34 On 19th of December 1968, the General Assembly endorsed are solution 35 about
‘Respect for Human Rights in Armed Conflict’. That resolution codified basic Human
Rights principles applicable in all forms of armed conflict, and at the same time gave a
decisive impetus to the process which eventually lead to the adoption, in 1977, of the two
Protocols Additional to the Geneva Conventions.36

32
The military tribunals held after World War II by the Allied power under international law
33
AJIL,Vol.41,1947, pp.248-249
34
Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War, ICRC, 4thEd, 2001, p.19
35
2444(XXIII)
36
Y.Sandoz, C.Swinarski, B.Zimmermann(eds.), Commentary on the Additional Protocols of June 1977 to the
Geneva Conventions of 12August 1949, Geneva 1987, p.xxx.

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 II. Customary Laws
According to Article 38(1) b. of the Statute of International Court of Justice, two
requirements are needed for the creation of a customary international legal principle; State
practises (usus) which means the physical element and, legal acceptance (opinio juris) the
mental element. Customary Laws are independent of Treaty Laws. Therefore, though a
state may have not ratified a certain convention but bound by the customary legal
principles.

In 1995, the 26th International Conference of the Red Cross and Red Crescent mandated
the International Committee of the Red Cross (ICRC) to prepare are porton customary
rules of International Humanitarian Law applicable in international and non-international
armed conflicts.37 As a result of that decision, in 2005, 161 of recognized customary rules
were written and codified by the ICRC. 38 The fact that customary law is not consensually
ratified by the states, does not mean that it is less binding than treaty law. Today, all those
customary principles are considered as hard laws by the international community.

III. General principles of law

The third source of International Humanitarian Law is the ‘General Principles of Law.’
There is no agreed common definition or list of general principles of law. However,
internationally recognized legal principles such as the Principle of Humanity, the Principle
of Distinction, the Principle of Proportionality and the Precautionary Principle can be
identified as some of the general principles in International Humanitarian Law.39

IV. Judicial Decisions

International tribunals have been formed at various times in the history of international
judicial. Afterthe2nd World War, The Nuremberg Tribunal and its sister tribunal in Tokyo
were formed by the Allied power to investigate crimes against humanity and war crimes
which were done by Axis powers during the 2 nd world war. In 1945 the International Court
of Justice (ICJ) was formed in Hauge. International Criminal Tribunal for the former
Yugoslavia (ICTY) was formed in 1993 after the Yugoslav Wars. International Criminal
Tribunal for Rwanda (ICTR) was founded in1994. As a permanent court, the International
Criminal Court (ICC) was established under the Rome Statute in 1998. Judicial decisions
given by all these ad hoc tribunals and permanent courts are considered as sources of IHL.

37
CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (ICRC) ihl-data bases.icrc.org/customary-ihl
38
ibid
39
Nils Melzer, supra, p.24

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 Scope of Application of International Humanitarian Law

International Humanitarian Law is designed to regulate and govern armed conflicts.

Today, the political concept of “war” has been replaced by the factual concept of “armed
conflict.” Armed conflict is a contested incompatibility that concerns government and/or
territory where the use of armed force between two or more parties. 40 The mental element
of an armed conflict is called animus belligerendi. 41 It is the intention of belligerent. The
social, political and economic crises are leading to various armed conflicts around the
world. Armedconflictsaredefinedaspoliticalconflictswheretheuseofarmedforcebytwoparties
of which at least one is the Government of State results in at least 25 battle-related deaths.
A ‘major armed conflict’ is a war between states and a current political conflict within a
State in which armed fighting or clashes between Government forces and its opponents
result in at least 1,000 deaths in the course of the conflict.42

Classically, armed conflicts can be divided into two main categories. The conflicts which
are involving warring belligerent parties within a single state calls ‘Non-International
Armed Conflicts.’ Sri Lanka's civil war, which lasted for three decades that ended in
2009, can be considered as a non-international armed conflict. And those involving armed
forces from two or more states can be called as ‘International Armed Conflicts.’ In
Europe, between 1991 and 1995 Slovenia, Croatia and Bosnia and Herzegovina involved
in armed conflict which was known as ‘The Bosnian War’ could be recognized as an
international armed conflict. Most armed conflicts are fought not only by regular armies
but also by militias and armed groups with ill-defined chains of command. 43 The Syrian
civil war is one of the most confusing armed conflicts at present. It began as a non-
international armed conflict, but today Syrian war-field has converted into a more
complicated situation. Nowadays, most of the non-international armed conflicts are
intervened by foreign powers, and eventually, those conflicts have become international
armed conflicts. That type of armed conflict can be defined as ‘Internationalized Armed
Conflicts.’

40
The UCDP Armed Conflict Definition-Erik Melander, Professor of Peace and Conflict Research Director of
The Uppsala Conflict Data Program Department of Peace and Conflict Research, Uppsala University
41
animus belligerendi (Latin) = The Intention of belligerent
42
Wallensteen, Peter, and Margareta Sollenberg, Armed Conflict and Regional Conflict Complexes,1989-
97, journal of peace research, vol.35, no.5, 1998, pp.621-634; the conflict data project, department of
peace and conflict research, Uppsala University; http://www.pcr.uu.se/data.htm; and preliminary data for
1999 provided by the conflict data project, Uppsala University.
43
Armed Conflicts and Their Consequences–United Nations

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 As described above, International armed conflicts are belligerent confrontations between
two or more sovereign States. Common Article 02 of the Geneva Conventions states that:
"In addition to the provisions which shall be implemented in peacetime, the present
Convention shall apply to all cases of declared war or of any other armed conflict which
44
may arise between two or more of the High Contracting Parties…” According to this
provision, those which ‘High Contracting Parties’, meaning sovereign states. When one or
more States have recourse to armed force against another State it makes an International
Armed Conflict.45 According to ‘Additional Protocol - I, for the Geneva Conventions’
armed conflicts against colonial domination and alien occupation and racist régimes in the
exercise of their right of self-determination are also interpreted as ‘International Armed
Conflicts’.46

However, most of the contemporary armed conflicts are immerged, not between States,
but between States and organized militant groups or between such groups. Common
Article 03 of the Geneva Conventions applies to "armed conflicts not of an international
character occurring in the territory of one of the High Contracting Parties".47 These
include armed conflicts in which one or more non-governmental armed groups are
involved. These are called non-international armed conflicts. Additional Protocol - II,
which was adopted in 1977, develops and supplements common Article 3.48

According to Nils Melzer ‘armed conflicts subjected to foreign interventions are a special
form of armed conflicts sometimes also less accurately referred to as “internationalized”
armed conflicts. In essence, this concept refers to a State, or coalition of States,
intervening in a pre-existing non-international armed conflict, there by becoming a (co-
belligerent) party to that conflict.’49

Though ‘International’, ‘Non-International’ and ‘Internationalized’ armed conflicts

are governed by International Humanitarian Law, the ‘Internal Disturbances’ are in the
scope of the Domestic Criminal Law and International Human Rights Law.

44
Common Article 2 of Geneva Conventions–“…the present convention shall 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..."
45
How Is the Term" Armed Conflict" Defined in International Humanitarian Law? International Committee
of The Red Cross (ICRC) Opinion Paper, March 2008
46
Article1(4) of the Additional Protocol-I
47
Common Article 2 of Geneva Conventions–“In the case of armed conflict not of an international character
occurring in the territory of one of the high contracting parties...”
48
Additional Protocol II (1977)
49
Nils Melzer, supra, p.73

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 Fundamental Principles of International Humanitarian Law

Balancing military necessity and humanity is the core principle of the International
Humanitarian Law. Therefore, International Humanitarian Law is based on the balance
between considerations of military necessity and humanity. It is forbidden to inflict
suffering, injury or destruction not necessary to accomplish a legitimate military purpose.

One of the main cornerstones of IHL is the Principle of Distinction. According to St;
Petersburg declaration “the only legitimate object which States should endeavour to
accomplish during war is to weaken the military forces of the enemy,”50 Therefore,
civilians and civilian objects are could not be targeted.

Another key concept of IHL is the Principle of Proportionality. Where the infliction of
incidental harm on civilians or civilian objects cannot be avoided, it is subjected to the
principle of proportionality. It prohibits “indiscriminate attacks” which fail to distinguish
between military objectives and civilians, or where such distinction is not possible.51

The Precautionary Principle is another fundamental phenomenon in IHL.During military

operations, all provable precautions must be taken to save the civilian population and
objects and protect them against the harm resulting from the effects of hostilities.

IHL protects not only civilians but also the militants, who no longer able to fight. They are
called hors de combat. Every hors de combat has a right to Humane Treatment.
52
According to the Customary Humanitarian Law Rule, No. 47 hors de combat means, (a)
Anyone who is in the power of an adverse party; (b) Anyone who is defence less because
of unconsciousness, shipwreck, wounds or sickness; or (c) Anyone who clearly expresses
and intention to surrender. The entitlement to humane treatment is absolute and applies not
only to civil persons but also, the hors de combat(s) and more generally, to the inhabitants
of territories under enemy control.53

The means and methods of warfare are to be used only for Military Necessity. Therefore,
IHL has introduced many treaty laws to eliminate the destructive outcomes and
unnecessary sufferings of using means and methods of warfare.

50
St. Peters burg Declaration (1868), Preamble.
51
Additional Protocol1, Article 51(4)
52
Rule 47. Attacks against Persons Hors de Combat
53
Nils Melzer, supra, p.20

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 International Human Rights Law and International Humanitarian Law

The core concept of International Humanitarian Law, as well as the Human Rights Law, is
‘Humanity’. International Human Rights Law operates at all levels. Therefore, it can be
interpreted as the general law (lex generalis), but the Humanitarian Law is not effective
during peacetime. It is only applicable in armed conflicts. Therefore, International
Humanitarian Law can be identified as a special law (lex specialis).

One of the main difference sin these two legal regimes are, International Human Rights
Law allows a State to suspend several human rights if it faces a situation of emergency,
but International Humanitarian Law cannot be suspended. (except as provided in Article 5
to the Fourth Geneva Convention. Under this Article, if a person is definitely suspected of
or engaged in activities hostile to the security of the State, such individual person shall not
be entitled to claim such rights and privileges under the present Convention 54) However, a
State cannot suspend or waive certain fundamental rights that must be respected in all
circumstances.

International Humanitarian Law is based on the Geneva and Hague Conventions,

Additional Protocols and a series of treaties governing means and methods of waging war
as well as customary law. International Human Rights Law is mainly based on the
Universal Declaration of Human Rights (UDHR) and other Human Rights conventions
such as International Covenant on Civil and Political Rights (ICCPR), International
Covenant on Economic, Social and Cultural Rights (ICESCR) and regional treaties. A
common set of principles are recognized within the framework of International
Humanitarian Law and International Human Rights Law. It makes a strong inter
connection between these two legal branches. International Humanitarian Law and Human
Rights Law make a significant effort to protect humanity within the armed conflicts.
Therefore, Human Rights Law and Humanitarian Law mutually cannot be separated.

Contemporary Challenges of International Humanitarian Law

I. War on Terrorism

‘Global Terrorism’ is one of the major threats to the world in present. Office of the United
Nations High Commissioner for Human Rights (UNHCHR) defined that ‘Terrorism' can

54
Article 5 of 4th GC: “Where ,in the territory of a Party to the conflict, the latter is satisfied that an individual
protected person is definitely suspected of or engaged in activities hostile to the security of the State, such
individual person shall not been titled to claim such rights and privileges under the present Convention as
would, if exercised in the favour of such individual person, be prejudicial to the security of such State.”

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 be commonly understood as acts of violence that target civilians in the pursuit of political
or ideological aims. However, global terrorism cannot be interpreted as an independent
outcome of isolated extremism, but more precisely, it should be analyzed as an artificially
created phenomenon by global capitalism.

After the terrorist attacks of 11 September 2001 in New York City and Washington, DC
the United States had declared a global “War on Terror,” the UN Security Council had
affirmed the right of self defence against what appeared to be an attack by a transnational
terrorist group, and NATO had for the first time in its history declared a case of collective
self defence based on Article 5 of the North Atlantic Treaty. 55 On that stand, the US and its
allies have started to invade countries. Most of these countries are rich oil and mineral
fields. Today, all these occupied countries have been destroyed and internal political and
economic conflicts have intensified. But the terrorism remains.

Global terrorism is not just only a threat to global security. It is making Human Rights and
Humanitarian crises worldwide. Recruiting child soldiers, women sex exploitations,
slavery, human trafficking, starving, refugee crisis, can be identified as some of those
crises made by terrorism.

The question is, Can the global “War on Terror” be regarded as an armed conflict
governed by International Humanitarian Law? Most terrorist groups do not comply with
International Humanitarian Law. Sometimes state parties are not concerned about the IHL
principle when dealing with terrorism. (one example is the US detention centre at
Guantanamo Bay. Since its detainees are suspected terrorists, they are not considered as
PoWs.)

Terrorism negates the fundamental principles of humanity as well as the essential

principles and objectives of International Humanitarian Law. Therefore, “War on Terror,”
makes uncertainty about the adequacy of existing International Humanitarian Law to cope
with the emerging security challenges of the 21st century.

II. Proxy Wars and Asymmetric War fare

Any party directly or indirectly supporting, encouraging or provoking the participants in an

armed conflict, but not actively participating in the armed conflict, can be identified as a Proxy
War. During the Cold war between the United States and the Soviet Union, which in turn
resulted in a proliferation of non-international proxy wars between governments and organized
armed groups, in which each side was supported by one of the super powers. The Nicaraguan

55
NilsMelzer,supra,p.38

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Civil War (1979–1990) is one example of a proxy war during the cold war period. The U.S-
backed and funded right-wing rebel groups named 'Contra' involved in a civil war with the left
wing government. After the end of the civil war, Nicaragua sued against the USA in the
International Court of Justice.56 The Court found in its verdict that the United States breached of
its obligations under Customary International Law principles, ‘Not to use force against another
State’, ‘Not to intervene in its affairs’, and ‘Not to violate its sovereignty’. ICJ ruled in favour of
Nicaragua and against the United States. But in the security council, the USA used their veto
power and obstructed the resolution for compensations. In 1992 Nicaragua withdraw the
complaint about compensations.
Today, as a result of the ‘Arab Spring', 57 the region of middle-east has become another proxy-
battle field of world super powers. For example, In Syria, the regime of Bashar al- Assad on
Russian support is fighting with the US and Saudi backed rebels. ISIS was the most powerful
militant group in the Syrian war. But with the Russian air support and military aid from Iran,
Al-Assad successfully limited the ISIS territory in Syria. Today, the Islamic State organization
does not have any clear territory, but the terrorist activities of ISIS in worldwide have not
ended yet. Nowadays the Syrian battlefield becomes the most complicated war zone in the
world. By 2018, at least 511,000 civilians have died during the Syrian war.58

In the 21st century, most of the proxy wars can be identified as asymmetric warfare. Because
these kinds of armed conflicts are upraised between state and non-state actors. As a result of
these proxy wars, the world is facing many humanitarian issues. Therefore, International
Humanitarian Law has to find remedies for these kinds of issues.

I. Using new technologies in armed conflicts

Today, new methods and technologies have been introduced to the battlefield. Many of
these weapons and technologies have been introduced to minimize the damage to their
side in the war and to cause disastrous damage to the opposing side.

Now a days in every battlefield, Remote Control Drones (UAVs: Unmanned Aerial
Vehicles) are using to collect information as well as to strike on identified objects. But the
question is the accuracy of drone strikes are not 100% confirmed. Therefore, the UAV
attacks may not conform to the Principle of Distinction. In the 21st century, cyber
technology is using in everywhere. Even in the warfare. In that sense, the cyberspace can
be identified as the ‘5th domain of warfare’ next to land, sea, air and space. However, IHL
would also apply to cyber operations conducted in relation to an existing armed conflict.

56
Nicaragua v. United States of America: 1986 I.C.J.14
57
The Arab Spring was a series of pro-democracy uprisings that enveloped several largely middle east
countries, including Tunisia, Morocco, Syria, Libya, Egypt, and Bahrain. The events in these nations
generally began in the spring of 2010
58
Human Rights Watch (https://www.hrw.org/world-report/2019/country-chapters/syria)2019/11/30

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 Cyber-warfare also raises legal questions of fundamental importance in other areas of
International Law, such as Jus ad Bellum and the Law of Neutrality. 59 In 2009, the NATO-
affiliated Cooperative Cyber Defence Centre published a ‘Manual on the International
Law Applicable to Cyber Warfare’60 to introduce some guidelines on cyberwarfare.

Using Bio technological and Chemical weapons in warfare is another challenge faced by
the International Humanitarian Law. These kinds of weapons are restricted and prohibited
by several treaties and conventions. But still, these weapons are using in armed conflicts.
After World War II, atomic bombs are not used yet in combat fields. In 1996 International
Court of Justice made an ‘Advisory opinion on the Legality of the Threat or Use of
Nuclear Weapons.’ The majority decision was that there is no source of law, customary or
treaty, that explicitly prohibits the possession or even use of nuclear weapons. 61 As ICJ
decided, there are no such legal restrictions for creating or possessing nuclear weapons.
According to the SIPRI Year book: 2019, released by Stockholm International Peace
Research Institute, there are total 13,865 nuclear warheads owned by nine nations: The
United States, Russia, the United Kingdom, France, China, India, Pakistan, Ireland
NorthKorea.62 Therefore, if the 3rd World War will occur, it would be the first and last
nuclear war on Earth.

59
Nils Melzer, supra,p.43
60
Tallinn Manual on the International Law Applicable to Cyber Warfare (2009)
61
Legality of the Threator Use of Nuclear Weapons [1996] ICJ 2
62
SIPRI Yearbook 2019, Armaments, Disarmament and International Security, p.11

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 Bibliography

Conventions
1. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and
Bacteriological Methods of Warfare - 1925
2. Charter of the United Nations-1945
3. Statute of International Court of Justice-1945
4. Four Geneva Conventions-1949
5. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
- 1954
6. Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and their Destruction - 1972
7. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques - 1976
8. Two Protocols additional to the four 1949 Geneva Conventions, strengthening protection for
victims of international (Additional Protocol I) and non-international (Additional Protocol II)
armed conflicts - 1977
9. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW) -
1980
10. Convention on Certain Conventional Weapons-1983
11. Convention on Chemical Weapons- 1993,
12. Ottawa Convention on anti-personnel mines–1997
13. Additional Protocol III to the four 1949 Geneva Conventions of introduced a common emblem
for ICRC - 2005
14. Convention on Cluster Munitions -2008

Books
1. Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, (ICRC) 2016
2. Y. Sandoz, C. Swinarski, B. Zimmermann (eds.), Commentary on the Additional Protocols
of June 1977 to the Geneva Conventions of 12 August 1949, Geneva 1987
3. Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War, ICRC,4thEd, 2001
4. Henry Dunant,Un souvenir de Solferino (A Memory of Solferino),1862
5. Francis Lieber, Instructions for the Government of Armies of the United States in the Field,1863

Reports

1. SIPRI Yearbook 2019, Armaments, Disarmament and International Security, Stockholm

International Peace Research Institute, 2019
2. Support to Resistance: Strategic Purpose and Effectiveness, Joint Special Operations
University, Center for Strategic Studies, 2019
3. Human Rights Watch, World Report, 2019

Case Law
1. Nicaragua v. United States of America-1986I.C.J.14
2. Advisory opinion on the Legality of the Threator Use of Nuclear Weapons-1996 I.C.J2
3. Prosecutor v. Duško Tadić,-1997 ICTY IT-94-1-T

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