Essay: International humanitarian law

In 2004, the Appeals Chamber of the Sierra Leone Special Court held a position that ‘it is well settled that all parties to an armed conflict, whether States or non-State actors, are bound by international humanitarian law, even though only States may become parties to international treaties.’
According to the Inter-Agency Standing Committee Task Force on Humanitarian Action and Human Rights 2004, International humanitarian law is comprised of international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts. Its principal aims are to protect persons and property that are, or may be, affected by the conflict – e.g. civilians and prisoners of war and civilian objects – and to reduce the right of the parties to a conflict to use ways and means of war of their choice.
This is similar to the definition given by the International Committee of Red Cross (ICRC), IHL and it can be seen that non-State parties to an armed conflict are bound by IHL and this non-State parties includes non-State actors: private citizens, armed groups, national liberation movements, and international organizations (i.e al-Qaeda). In the last four years, well over 60 countries were the theatre of armed conflicts – whether inter-State or non-international – with all the devastation and suffering that these entailed, chiefly among civilian. As said earlier that IHL applies to only situations of armed conflicts, it does not regulate terrorist acts committed in peacetime. It also becomes applicable irrespective of the legality of the original use of force. Besides, IHL also clearly criminalizes acts of terrorism against civilians in the hands of the opposition, coupled with increasing terror in the midst of the civilian populace by parties to an armed conflict in the conduct of hostilities. These proscriptions, which can be compared to acts with the singular determination to cause intimidation among civilians, are supplementary to the previously stated rules intended to protecting civilian and property.
Since World War II, the term IHL has likewise been utilized by researchers to incorporate criminal acts against mankind seeing that that classification of law violations has risen up out of war crimes, despite the fact that it is presently irrelevant to war atrocities and is relevant in times of war and peace; and terrorism, in so far as that criminal act was initially a more extensive expansion of law violations against humankind, which applies as far as war and peace
IHL concerns itself with the fact of war and not the aim for a particular conflict or its legality; its provisions apply to all sufferers of war, irrespective of which side of the parties to conflict they are on the reasons for the conflict or its legality or the fairness of their grounds. Persons or properties that are vulnerable to conflicts have well been secured by the rules of IHL such that the methods and means that parties to conflict may want to adopt are restricted for humanitarian purpose.
In addition to regulating the means and methods of warfare, IHL outlines the rights and duties of parties to an armed conflict and the potential role of humanitarian agencies regarding assistance.
The expression “International Humanitarian Law is applicable to armed conflict” is often abbreviated to Humanitarian Law. Though the military tends to prefer the expressions “Laws of Armed Conflicts” (LOAC) or “Law of War”. IHL does not apply in situations of internal violence, such as demonstrations, disturbances, riots, or internal tensions.
IHL is a part of public international law; public International Law is a broad set of treaties, customary law, principles and norms. The background customarily controlled relations just between States. It has advanced, be that as it may, to cover a various range of individuals. IHL is noteworthy in this respect, as it identifies commitments for both States and non-State armed groups that belong to an armed conflict.
Furthermore, IHL embodies a steadiness concerning military requirements and humanitarian concerns in the framework of conflicts. Humanity, as a basis of IHL, signifies the most vital concern during conflict to lessen suffering and loss of lives, and to give care humanitarianly and respectfully to victims of conflict. The reasoning of military requirements provides what is needed to realize military set objective, as long as these requirements conform to IHL. The harmonizing of humanity and military requisite is comprehended in the setup of IHL norms of distinction and proportionality. Armed conflict participants are required to distinguish, at all times, between civilians and combatants and between civilian objects and military objectives.
Additionally, an attack may not be launched if it is anticipated to cause “incidental loss of civilian life, injury to civilians [or] damage to civilian objectives which would be excessive in relation to the concrete and direct military advantage anticipated.” Supplementary to IHL standards comprise of the onus to take procurements to deal with the non military personnel populace before and amid the attack, the avoidance against bringing about of pointless suffering or unnecessary harm, and the counteractive action of unpredictable attacks. The essential rules of IHL includes:
1. Persons who do not or can no longer take part in the hostilities are entitled to respect for their life and for their physical and mental integrity. Such persons must in all circumstances be protected and treated with humanity, without any unfavourable distinction whatever;
2. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.
3. The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared and the Red Cross or Red Crescent on a white background is the sign protecting such persons and objects and must be given its due respect.
4. Captured combatants and civilians who find themselves under the authority of adverse party are entitled to respect their life, dignity, personal rights and their political, religious and other convictions. Violence or reprisal should not be utilized against them and they are qualified for exchange of happenings with their families and get helps.
5. Everyone must enjoy basic judicial guarantees and no one may be held accountable for an offence he has not committed and no one may be subjected to physical or mental torture or too cruel or degrading corporal punishment or other treatments.
All parties to an armed conflict, whether they are States or non-State actors are bound by the relevant rules of IHL. This case even though only States may become party to international treaties and thus to the four Geneva Conventions and their Additional Protocols. States Parties must not only ‘respect’ but also ‘ensure respect’ for IHL in all situations. While the obligations of non-State armed groups may differ from those of sovereign States, most of the customary rules of IHL apply to all parties to a conflict. Non-State armed groups are generally bound by the treaty IHL rules which is also valid in non-international armed conflicts.
In conclusion, States not party to an armed conflict are required neither to encourage a party nor violate IHL nor to take such action as would assist in the commission of violations of IHL. This obligation is generally interpreted as requiring States not party to an armed conflict to take all appropriate measures to prevent or end violations of IHL committed by any party to the conflict.
2.1.2. Definition and Classification of Armed Conflict
It is pathetic in the history of armed conflict that civilians highly suffer the brunt of the violation of IHL committed by State parties and non-State armed groups. Intentional evil act against civilians, coercive dislocation of millions of civilian populace, collateral destruction of infrastructure billions of dollars associated to the living and survival of the civilian populace happens to be some of the forbidden examples of acts carried out every time. Wickedness inflicted on individual unarmed citizens in armed conflicts that violated IHL includes barbaric killings, forced desertion, anguish and unpleasant treatment, heartless degrading of human dignity, sexual violence and so on. Locations where civilians dwell have been used as protection for amours, meetings and sanctuary. Individuals detained in the course of armed conflicts have been dispossessed of their fundamental human rights while in detention coupled with the right to fair trial.
Armed conflict is an expression which covers armed confrontation between two or more States, a State and a body other than a State, a State and a dissident faction and two ethnic factions within a State.
In the Prosecutor v Jean –Paul Akayesu the International Criminal Tribunal for Rwanda (ICTR), tried to define Armed Conflict. The court referred to the decision of the Appeals Chamber of International Criminal Tribunal for the former Yugoslavia (ICTY) in the Prosecutor v Tadiac (supra) where the Tribunal held that armed conflict exists:
“Whenever there is… Protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International Humanitarian Law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities…”
According to the Rwandan Tribunal, the term ‘armed conflict’ in itself suggests the existence of hostilities between armed forces organized to a greater or lesser extent.
However, it is very important that armed conflict is classified so as to significantly determine the international law framework and rules applicable to situations and to judge violations of applicable law by State or non-State parties to a conflict. IHL classifies armed conflicts as International Armed Conflict (IAC), Non-International Armed Conflict (NIAC) and Internationalized Armed Conflict. Whether or not an armed conflict is IAC or NIAC has significant implications, for instance, Prisoners of War (POW) status as well as combatant status is found only in the rules applicable to IAC. The guidelines regulating the ways hostilities and in addition humanitarian right to use and aid are more in depth in IAC. All in all, the treaty rules related to IAC aggregate near to 600; those appropriate to NIAC are less than 30. This dearth of guidance can pose a challenge because the majority of contemporary conflicts are NIAC.
1. International armed conflicts (IAC): according to Common Article 2 of the 1949 Geneva Convention which IAC exclusively fall under, it was stated that in addition to the provisions which shall be implemented in peace-time, 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, even if the State of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
In other words, for a conflict to be termed ‘International Armed Conflict’, it essentially has to be between two sovereign States. International armed conflicts includes;
a. The use of force in war like manner between States whether or not they are recognized themselves being at war.
b. All measures short of war whether or not they are compatible with the article.
c. Wars of liberation as set out in the convention.
The ICRC commentary on the above provision revealed that “Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a State of war; it makes no difference how long the conflict lasts, or how much slaughter takes place; the respect due to the human person as such is not measured by the number of victims.”
When there is an exchange of hostilities between two or more States, International Law considers this sufficient to trigger IHL. When parties to armed conflict commit atrocities, their actions are measured by the rules of IHL. A very good example is the North Korean – South Korean war of 1960.
The application of IHL is not dependent on a formal declaration of war. Formal declaration of war is nowadays occur only occasionally. For instance, in the Six-Say War of June 1967, Jordan, Kuwait, Sudan, Yemen, Algeria, and Saudi Arabia formally declared war on Israel.
2. Non-International Armed Conflict (NIAC): A 2008 public ICRC opinion paper on the definition of armed conflict under IHL defines NIAC as:
“Protracted armed confrontations occurring between government armed forces of one or more armed groups, or between such groups arising on the territory of a State (party to the Geneva Conventions). The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.”
NIAC may also be defined as a type of conflict which involves the armed forces of a State and other forces within the same State, including terrorist, those who fight liberation wars and rebels of different causes, but does not extend to situations of internal disturbances or tensions. NIAC are governed principally by Geneva Conventions via Common Article 3 and Additional Protocol II (APII).
For a situation to be classified as a NIAC, it has to achieve two items which simply are:
i. The hostilities have to reach a certain minimum level of intensity and form in a collective character;
ii. There has to a level of organization of the parties.
An IAC on the other hand is a civil war in which the armed in a foreign power intervene. The most noticeable example of an internationalized armed conflict was the conflict in the Democratic Republic of Congo in 1998 when the forces from Rwanda, Angola, Zimbabwe and Uganda interfered to help various groups. Such a setting may develop in many, often-intricate situations, which include the following:
i. A war involving military intervention of, or the overall control exercised by a foreign State in support of an armed group fighting against a government;
ii. Fighting between two or more armed groups within one State and a foreign State exercising overall control over each of them;
iii. A war between two foreign States that have militarily intervened in a NIAC in support of two opposing armed groups.
If the foreign State withdraws from the conflict or ceases to exercise overall control, the armed conflict reverts to its non-international status, provided that the situation still meets all the criteria for NIAC.
According to Piertro Vierr, a NIAC may be internationalized if; a State victim of insurrection identifies the rebels, insurgents, revolutionaries, or terrorists as belligerent… one or more foreign States assist one of the parties with their own armed forces; or armed forces of two foreign States intervene each in aid of a different party.
However, IAC lacks specific international provisions unlike two distinct categories of international and non-international armed conflicts. There are some conflicts which may be termed internal involving large groups of fighters or terrorists from abroad, financial and military support from foreign States or even invasions into a foreign territory. In the practical sense, internal armed conflicts are often mixed due to the fact that they occur within the territory of a State, but becomes an internationalized scene when intervention comes foreign States. In Africa for instance, the conflict in Sierra Leone also comes close to being regarded as a mixed conflict. While it has strictly internal elements, it has external dimensions which involved troops from Liberia and Burkina Faso. The involvement of Economic Community of West African States Monitoring Group (ECOMOG) troops adds another dimension to the conflict. ECOMOG as an organ of sub-regional body of Economic Community of West African States (ECOWAS) fought on the side of the elected government of President Kabbah particularly when he requested the assistance of sub-regional body ECOWAS to reinstate him after being overthrown in a coup.
Many conflicts situations in the world today have effects on the actions of neighboring governments and the international community on a large scale with aspects that has both international and non-international coverage.
2.2. Understanding terrorism as a crime
2.2.1. Definition of terrorism
In many parts of the world, especially Pakistan and Afghanistan, terrorism, war and conflict stop children to go to their schools. We are really tired of these wars. Women and children are suffering.
Malala Yousafzai
Terrorism has been described variously as both a tactic and strategy; a crime and a holy duty; a justified reaction to oppression and an inexcusable abomination. It would not be righteous to ignore the fact that terrorism has no single definition. Its definition has pulled a lot of debates with no explicit definition yet. Within the caucus of world powers, there has been no unification for a definition for this disturbing act.
As an instance, within the U.S. government agencies, the U.S. States Department extracts its definition from Title 22 of United States Code, Section 2656f (d):
“The term ‘terrorism’ means premediated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents, usually intended to influence an audience.” (the term ‘noncombatant’ is interpreted to include, in addition to civilians, military personnel who at time of incident are unarmed or not on duty.)
The FBI endorses a definition entrenched in the U.S. Code of Federal Regulations:
“Terrorism is the unlawful use of force and violence against person or property to intimidate or coerce a government, the civilian population, or any segment thereof, in further of political or social objectives.”
The U.S. Defense Department gave a close definition which goes thus:
“Terrorism is the unlawful use of threatened use of force or violence against individuals or property to coerce or intimidate governments or society, often to achieve political, religious or ideological objectives”
In the Europe, The British defined terrorism as:
“The use or threat, for the purpose of advancing a political, religious or ideological cause, of action which involves serious violence against person or property.”
The Germans gave a simple definition which seems to be:
“An enduring conducted struggle for political goals, which are intended to be achieved by means of assaults on the life and property of other persons, especially by means of severe crimes.”
Gurr Robert, a scholar on terrorism, gave his own definition of terrorism as:
“The use of unexpected violence to intimidate or coerce people in the pursuit of political or social objectives”
Gibbs, in his own words described terrorism as:
“Illegal violence or threatened violence against humans or nonhuman objects”
One common thing about all these definitions is that they express terrorism as an unlawful act. It is painted as a crime meant to terrify people in which this evil act creates fear of walking freely on the streets, fright of taking or sending children to school (such as the case of Columbine), scared of going to work (like the scene of 9/11) or fear of spending beautiful moments in touristic environment (such as brutal attack on tourists in Tunis), the heart attack of flying in the air (like Bin Laden’s 9/11) and so on.
2.2.2. The traditional view of terrorism
Before the 21st century, terrorism was basically seen to be regional to achieve political aims. In the words of Clarke and Newman, in which they cemented terrorism then that the location of targets is a factor considered which would ease their focus and success. They hardly carry out operations where there is no proximity to their domain. One thing that was a demerit to crossing border then can be linked to the coded conveyance of their weapons and members across territories coupled with the poor communication systems. This cripples there terroristic aims in carrying out terror outside their jurisdiction. Also included in the styles of the traditional terrorists were there well known motives to knock down incumbent government of a State and thereby enhancing their own power, and also creating fears, killing or threatening to kill anybody.
The world is now in a level where terror can take its place with the highest connectivity that cannot be under estimated. As the world is advancing, so also the organization of terrorism is progressively getting widespread. According to Veryan Khan, an editorial director of TRAC, Nigerian Boko Haram now has a connection with ISIS fostering evil agenda transcontinentally. A Boko Haram spokesman said in 2011: “Al-Qaida are our elder brothers. We enjoy financial and technical support from them. Anything we want from them we ask them.”
To get more funds to blend or to fit-in into their giant space, Wechsler indicated that terrorist groups now use criminal means such as drug trafficking to generate revenue, (Afghanistan’s flourishing poppy crops, which the United Nations says are responsible for as much as 86 percent of the world opium supply, are widely believed to be a major source of terrorist funding). Kidnapping has likewise been known as an amazing approach to raise money for arms, and also basic criminal acts, for example, bank theft. One remarkable thing about terrorism is that they see themselves as one. A terrorist can escape from a State’s security and run to another State where a different terrorist group are located to seek refuge, they provide training grounds for themselves for special understanding and teachings of newest approaches to terror. It is imperative to note that a terrorist campaign will almost always fail if it cannot attract substantial internal or international support.
2.2.2.1. Terrorist
At present, there seems to be no unified definition for who a terrorist is. Also, there is no legal definitions or Conventions that expressly gave a general definition to it. In as much there is still the need to define it, it can be said that:
A terrorist is one who uses violence not in accordance with universally operative rule of law sanctioned and enforced by a World Government representative of peoples of all countries such that universal social justice is the spirit of the law and that the law is seen to be intrinsically good, having the imperative of a moral law.
Flowing from the traditional view of terrorism, nothing would have been known as terrorism without the singular understanding of what makes it what it is today. What keeps terrorism in existence till present day is the symbolic truth that it pots and grooms team-oriented, highly motivated, committed, charismatic, religious fanatics/extremists that are always loyal to a cause either triggered by politics and or religion with no respect to human life or property.
It would be discriminatory to say that some races, ethnic groups, or citizens are potential or likely terrorists and hardly can one describe how a terrorist would look like. Most terrorist groups have gone to the level of hunting for men and women who cannot be easily identified to be terroristic in nature. They are even unknowingly present in law enforcement agencies, they are found in the intelligence units of forces, they are everywhere unbelievable. Christians or Muslim converts with hairstyles, moves and accents that would make suicidal attacks to be carried out successfully are mostly used to circumvent the highest security mechanisms to identify terrorists. Terrorists are indeed “uncommon” criminals. They are masters of disguise and evasion. They have a tough conviction system which makes them resistant from guilt, shame, remorse, and regret. They take their politics, nationality, and/or religion very extremely. They have tiny or no connection to any legitimate social structure, and even less connection to conventional norms and customs. Indeed, they need to “enforce” their abnormal attachments on others by claiming their ways of seeing things ought to be the conventional way.
According to O-Conner Ale, a Psychologist, he said “the conception of a terrorist has become more complex and dynamic over the past two decades. Before the 1980s, most terrorists were lone assassins who restricted their attacks toward political leaders.” He went further by saying “by the mid-1980s, international terrorist organizations began to form. As these organizations began to grow in size, so did the scope of their targets, as many organizations began attacking civilians in addition to political or religious leaders. As terrorism changed, so did the types of people who became terrorists.”
As the terrorism goes through transition, so also there scopes changes but one thing remains, which is, commission of crime as they struggle for their cause. They are not lunatics or common criminals. A professor of psychology at Bryn Mawr College, Clark R. McCauley said “terrorist organizations avoid people with mental illnesses. These organizations need members that will be cooperative and loyal to the group. Someone without such qualities may jeopardize missions or betray the group.”
They are team oriented because they are more sheltered together which enable the group ideologists to stock their members’ minds with set of beliefs and values that would change their thoughts, behaviors, and motives. Even if joining the terror group was to escape poverty or just for youthful exuberance with no intention of killing, this would be changed by making them to have the understanding that the group they belong to is under threat and needs to be defended till death from external belligerences. Like it was said by Rona Fields, a Washington D.C. psychologist “that they [terrorists] believe there’s a difference between right and wrong, but when they do something in the name of [their] cause, it’s justified.”
However, they are not to be confused with criminals because criminals are opportunists who are inspired by delicate (financial) needs. According to Dr. David Goldstein, the terrorist is frequently well prepared and state-bolstered. He or she has a particular objective, which is a top priority, and is more representational than devious. Then again, it is a reasonable expression that the ordinary criminal is one who looks for opportunistic targets, has small support, is narrow minded, needs training and may be dissuaded without stress. It is evident that criminals do not have a defined ideology for crime or religious backing for their acts. They do not have an organized school of thought for criminal deeds and neither do they polish themselves to be disciplined or not to be selfish in their ways. Ones they get the cash or articles they want, they disappear.
In fact, there are several laws in place applicable to any form of crime with appropriate punishments. Even in the past before the era of civilization, there were very pitiless punishments for criminals on public grounds with a serious message to warm anyone against crimes. These methods were effective then due to the fear it creates in the minds of potential criminals. We cannot and must not equate this to terrorism of the present day or equate terrorist to criminals. Never! It is easy to make a distinction between a crime and an act of terrorism on the grounds of guilt or innocence proceedings and sentencing procedures. Where a person is caught in the act, faces a judicial body, pleads guilty of the charges, he/she would be sentenced to prison in respect to his crime. In the case of a terrorist that is well trained, prepared, with high believe in a cause that he/she is ready to die for it, just like in this popular quote that “ONE MANS TERRORIST IS THE OTHER MANS HERO” vice versa takes the shape of the issue. While a criminal will run away from police, terrorist would stay with threat of detonating bombs on him/her. Unfortunately, when caught before the act or after, they would never plead guilty.
It is not that terrorist are to be given another name, they still remain criminals just like one would call a convicted armed robber a criminal. For instance, the perpetrators of the 9/11 attack on the US which killed about 3000 people and Oklahoma City Federal Building bombing that damaged more than $652 million worth of property are criminals but there magnitude is too nasty against humanity more than against individuals.