College of Law

Application of International Humanitarian Law: The Field and the Challenges
Dr. Ziyad Abdulwahab Al-Naemi
College of Law / University of Mosul

International humanitarian law is defined as that important part of public international law that deals with armed conflicts, whether international or non-international. It includes a set of customary and treaty rules that govern the conduct of belligerents engaged in armed conflict in the exercise of their rights and duties. International humanitarian law consists mainly of customary and treaty sources, in addition to other sources such as general principles, jurisprudence, and international judiciary. As for treaty sources, they come from two main foundations: the Hague Conventions and the Geneva Conventions. Therefore, it falls outside the scope of the rules of international human rights law, which may be included in this law in its broad and general sense.

The Hague Law is the set of provisions contained in the Hague Conventions of 1899–1907, which aim to set general rules on the conduct of war, the means used in combat, and the determination of the rights of belligerents. They are two international conventions discussed during two separate peace conferences held in The Hague: the First Hague Conference in 1899 and the Second Hague Conference in 1907, the latter being the Convention Respecting the Laws and Customs of War on Land (1907).

The Geneva Conventions are the set of treaty provisions established by the four Geneva Conventions of 12 August 1949, the two Additional Protocols of 1977, and the Third Protocol of 2005. These were preceded by the substantive development of the original Geneva Conventions of 1864, concerning the “Improvement of the Condition of the Wounded in Armies in the Field,” first established based on the proposal of Henry Dunant, founder of the International Committee of the Red Cross; the 1906 Geneva Convention concerning the improvement of the condition of the wounded and sick in armies in the field; and the two 1929 Geneva Conventions, the first and second, regarding the improvement of the condition of the wounded and the treatment of prisoners of war.

As for the four Geneva Conventions adopted on 12 August 1949, they included the following:

The First Convention for the Improvement of the Condition of the Wounded and Sick of Armed Forces in the Field.

The Second Convention for the Improvement of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea.

The Third Geneva Convention regarding the treatment of prisoners of war.

The Fourth Convention on the Protection of Civilian Persons in Time of War.

This day was a pivotal one in the history of international humanitarian law because it established the foundations and rules of a convention that addressed the issue of armed conflicts in all their forms, addressing the rights and duties of armed forces, clarifying the role of each in adhering to these rules and acting accordingly, and ensuring that the conduct of belligerents conforms to them. This is especially important since it constitutes a wide field in armed conflicts that may lead the belligerent forces to deviate from the rules or fail to comply with them or to apply them improperly, resulting in the abandonment of moral and legal responsibility.

The provisions of these conventions, whether codified or newly introduced, included expanding the scope of the conventions to cover (the material scope) such as international armed conflicts without a declaration of war, and non-international armed conflicts. This was achieved as a lesson learned from the Spanish war, which showed the difficulty in applying the previous Geneva treaties. In addition to expanding the material scope of armed conflicts, the personal scope was also expanded.

Challenges of International Humanitarian Law in the Field

The application of international conventions faces many challenges based on conflicts or individuals and the conduct of belligerents. This means that there are difficulties that may sometimes lie in the application of this law, as well as difficulties related to the personal scope, the protection of civilians, and other challenges.

The most prominent challenges facing international humanitarian law are the successive and developing conflicts, especially those of a non-international nature, and the significant overlap in such conflicts, requiring the actual application of the law whether between regular forces and breakaway forces, or between belligerent forces within the borders of a single state. The complexity has increased with the development of this type of conflict in legal classification through the emergence of a newly introduced conflict known as the hybrid or internationalized armed conflict, which represents a complex and difficult composition for legal classification, especially with the presence of a basis for it in internal armed conflict and its development in the international direction when external parties support this type of conflict and fuel it at the expense of the other party within the borders of the state. This has created a jurisprudential question and judicial practices that have attempted to classify the internationalized armed conflict under the rules of international humanitarian law and clarify it in a way that distinguishes it from the two traditional types of known conflicts, making it a new challenge added to the other challenges.

In addition, the successive development in the use of advanced weapons, cyber warfare, and state-specific technology and their ability to engage in indirect confrontation and use modern techniques has made this development a serious challenge added to these conventions and their development, which must play a role in determining the levels, results, and effects of such conflicts through the protection of rights and duties, especially since these electronic conflicts represent a new aspect that was not known when these rules were established.

Furthermore, human rights violations, which represent a fundamental aspect of conflicts and a wide field for such violations, make the Fourth Geneva Convention the main legal framework for protecting civilian victims during such conflicts, especially women and children, as they are the weaker party in this equation and the most affected by these conflicts. Many violations have accompanied international or non-international conflicts, prompting the establishment of special international tribunals in Yugoslavia and Rwanda, which addressed and clarified the international community’s position on such heinous and serious violations. These preceded the establishment of the International Criminal Court under the Rome Statute of 1998, which is considered the international criminal judicial system that punishes on the basis of individual criminal responsibility and deals with victims for the prosecution of individuals who are proven to have committed crimes against humanity, war crimes, genocide, or the crime of aggression.

Another challenge arises when one party in armed conflicts does not recognize the rules of international humanitarian law and does not apply the Geneva Conventions in the field, which constitutes another obstacle in the scope of necessary protection for those who fall victim to such conflicts.

The greatest challenge facing the Geneva Conventions today, in addition to legislative shortcomings or what is called a “treaty gap,” meaning the insufficiency of the rules, is also the insufficiency of international monitoring mechanisms and continuous follow-up to review, address, and revise the rules in line with current and future developments and the extent of the expansion of the material scope of their provisions to include everything mentioned above. This represents a challenge that does not diminish the importance of these conventions or their application, because these conventions constitute an important, pivotal, and necessary historical achievement that is compatible with cases of armed conflict and represents remarkable progress in the application of treaty-based international humanitarian law. They are an important stage in the qualitative development of the application of these rules at both the material and personal levels and an achievement that addresses much of the suffering, violations, and crimes committed during conflicts, strengthens human rights in the field, spares them any negative effects, keeps them away from imminent harm, and achieves the aim of international humanitarian law in realizing the principle of humanity, which is the first and most important principle contained in these conventions.