International humanitarian law

• 1. Introduction

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  International humanitarian law governs what soldiers may and may not do to each other and to civilians once a war has begun. It asks a question that most people assume has no answer: can killing be subject to rules? The answer, it turns out, is yes, though it is a contested and imperfect yes. At the heart of this body of law sits a tension that has never been fully resolved. Warfare is, by nature, destructive. But for centuries, cultures as different as ancient India, Islamic jurisprudence, and the Old Testament tradition have reached for the same idea: some people must be protected even in the worst violence. How that idea became binding international law is the story of soldiers, businessmen, nurses, and diplomats who refused to accept that war had to be unlimited. And the question of whether those rules are enough, or whether they can actually be turned against the people they are meant to protect, remains alive today.

• 2. Roots Across Cultures

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  The prophet Elisha gave a striking command to the King of Israel in one of the oldest recorded expressions of humanitarian restraint. When the king asked what to do with captured enemy soldiers, Elisha replied: "You shall not slay them. Would you slay those whom you have taken captive with your sword and with your bow? Set bread and water before them, that they may eat and drink and go to their master." Captives were to be fed and released, not executed.

  Ancient India's Laws of Manu listed specific weapons that could not be used in battle. Concealed weapons, barbed weapons, poisoned ones, and those with blazing fire tips were all prohibited. The same texts forbade striking an enemy who had folded his hands in supplication, or one who was asleep, or naked, or disarmed.

  Islamic law identified a broad category of people who must not be harmed: women, children, monks, hermits, the aged, the blind, and the insane. The first Caliph, Abu Bakr, issued direct orders to his forces that stand as a remarkably comprehensive early code: do not mutilate, do not kill the very young or the very old or women, do not destroy palm trees or burn them, do not cut down fruit trees, and do not kill livestock except for food.

  These were not simply moral ideals. Islamic jurists also wrestled with hard cases, such as what was permissible when an enemy retreated inside a fortification. They agreed that less precise weapons like mangonels, which hurled large stones, could be used when military necessity required it, though they disagreed about the use of fire in such situations. The limits had limits, and the debates about where to draw those lines are ones that legal scholars still conduct today.

• 3. The First Codifications

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  In 1820, an agreement known as the Armistice Agreement and Regularization of War was signed in the Venezuelan city of Santa Ana de Trujillo, between the government of Great Colombia and the Spanish Crown's expeditionary forces. It was signed during the conflict over Colombian independence and stands as the first treaty of its kind in the Western world. Decades before the better-known Geneva Conventions, this agreement between two sides at war attempted to write down the rules both would follow.

  By mid-century, the idea of a written code was gaining ground elsewhere. In 1863, Francis Lieber, a German immigrant living in the United States, drafted a code of conduct for the Union Army during the American Civil War. Known as the Lieber Code, it required humane treatment of civilian populations in conflict zones and prohibited the execution of prisoners of war. Lieber put into legal language principles that had previously existed only as custom or conscience.

  Almost simultaneously, events on a European battlefield were pushing in the same direction. Henry Dunant, a businessman from Geneva, had worked with wounded soldiers at the Battle of Solferino. What he witnessed there became the subject of a book he titled A Memory of Solferino. The reports it contained were, by any account, shocking. They led directly to the founding of the International Committee of the Red Cross in 1863 and to a conference in Geneva in 1864 that produced the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Florence Nightingale's involvement during the Crimean War had contributed to the same momentum. A scattered humanitarian impulse was becoming organized law.

• 4. The Geneva Conventions

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  Between 1864 and 1949, the Geneva Conventions were built up in stages, each round of revision driven by the scale and character of the wars that preceded it. The first convention, adopted in 1864 to protect the wounded in field armies, was revised significantly in 1906 and again in 1929. A parallel convention covering the wounded, sick, and shipwrecked at sea was adopted in 1906. The convention governing the treatment of prisoners of war followed in 1929.

  After World War II, all four conventions were revised and readopted in 1949. That same year, the fourth convention was added for the first time: the Geneva Convention relative to the Protection of Civilian Persons in Time of War. The revision reflected what the war had made impossible to ignore, that civilians were no longer incidental casualties but deliberate targets on an industrial scale.

  In 1977, three additional protocols extended the conventions further. Protocol I addressed victims of international armed conflicts; Protocol II extended protections to victims of conflicts that were not international, meaning civil wars and internal violence. As of January 2007, Protocol I had been ratified by 167 countries, and Protocol II by 163. Protocol III, adopted in 2005, created an additional emblem alongside the Red Cross and Red Crescent. By early 2007 it had been ratified by only seventeen countries, with an additional 68 having signed but not yet ratified it.

  The 1949 conventions themselves have reached what the source describes as universal participation: 194 parties, meaning they apply to virtually every international armed conflict on earth. The additional protocols, however, have not achieved the same reach. The United States, Iran, Israel, India, and Pakistan are among the significant military powers that are not parties to them.

• 5. What the Rules Actually Say

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  The core rules of international humanitarian law share a single organizing idea: some people are protected, and attacking them is never a legitimate military act. Protected persons are those who are outside of combat, whether through capture, wounds, sickness, or shipwreck, or who are simply not taking part in hostilities at all. They must be protected under all circumstances. No protected person may be subjected to torture, cruel treatment, or degrading punishment.

  The principle of distinction requires that warring parties tell combatants and civilians apart at all times and direct attacks only at military targets. Attacks on military objects must not cause civilian harm that is excessive relative to the direct military advantage expected; this is the principle of proportionality. Commanders are required to take every feasible precaution to avoid civilian casualties.

  The rules extend to how soldiers must identify themselves. Fighting without a distinctive uniform or other easily identifiable badge is a violation. Wearing an enemy's uniform to move undetected is allowed, but fighting in that uniform is a prohibited act known as unlawful perfidy. Taking hostages is prohibited. A white flag indicates surrender or a desire to communicate, and firing on someone displaying one is a violation; conversely, engaging in combat while displaying a white flag is itself a violation.

  The protections for women and children are spelled out explicitly. Women must be protected from rape, forced prostitution, and any form of indecent assault. Children under eighteen must not take part in hostilities. Female prisoners of war are entitled to separate dormitories from men and to treatment no less favorable than that given to men. An analysis of the 42 provisions relating to women within the Geneva Conventions and the Additional Protocols found that nearly half address women who are expectant or nursing mothers, a finding that feminist critics have used to argue that the law has historically cast women almost entirely as child-rearers rather than as full actors in conflict.

• 6. Weapons and Later Treaties

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  Unexploded land mines have caused up to 7,000 deaths a year in years following conflicts. The victims are overwhelmingly civilian: an estimated 98 percent, including farmers working their fields and children who come across the devices. That statistic drove a specific wave of treaty-making in the late 20th and early 21st centuries.

  The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, adopted in 1980, addressed multiple categories: weapons producing non-detectable fragments, mines and booby-traps, incendiary weapons used against civilians, blinding laser weapons, and unexploded ordnance that parties must clear after hostilities end. The 1997 Ottawa Treaty, also called the Mine Ban Treaty, went further, imposing a complete ban on the stockpiling and use of all anti-personnel land mines, with a narrow exception for training purposes.

  The Optional Protocol on the Involvement of Children in Armed Conflict, adopted in 2000 as an amendment to the 1989 Convention on the Rights of the Child, prohibited the enlistment of anyone under eighteen in armed conflict. The Convention on Cluster Munitions followed in 2008. Cluster bombs scatter large numbers of small bomblets, many of which fail to detonate and remain dangerous long after fighting has stopped. The 2008 convention prohibits their use entirely.

  These treaties share a common logic: weapons that cannot distinguish between combatants and civilians, or that continue to kill after the war that deployed them has ended, fall outside what the law permits. The International Committee of the Red Cross is the only institution explicitly named in international humanitarian law as a controlling authority, and its mandate derives from the four 1949 Geneva Conventions as well as from its own statutes.

• 7. Criticism and Limits

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  Luis Moreno Ocampo, chief prosecutor of the International Criminal Court, wrote in 2006 that international humanitarian law and the Rome Statute permit attacks against military objectives even when it is known that some civilian deaths will occur. The crime, as he defined it, lies in intentional attacks directed against civilians, or in launching attacks where the expected civilian harm is clearly excessive relative to the anticipated military advantage.

  But a body of legal scholarship has raised harder questions. IHL's doctrine of double effect permits civilian harm as collateral damage of military activity. Legal scholars have argued that permissive interpretations of this doctrine, including the argument that certain civilian populations could be designated as combatants or human shields, effectively remove civilian status from entire populations. Historian A. Dirk Moses has suggested that civilian killing in war and in genocide could be "a distinction without a difference".

  A specific critique concerns IHL's origins and authorship. To a large degree the modern codification was created by Western powers to further their own interests, and critics have long identified double standards in which forms of violence are legally sanctioned. At the same time, critics of states engaged in colonial violence have also cited IHL in favor of more consistent protection of civilians, suggesting the law can be pointed in more than one direction.

  The cultural dimension of IHL has been less contested than critics of international human rights law might expect. ICRC studies in the Middle East, Somalia, Latin America, and the Pacific have found traditional practices in those regions that predated but are broadly consistent with modern IHL. Scholar Durham cautions, however, that perfect alignment cannot be assumed: in cases where cultural practices legitimate violence against women, IHL's prohibition must not be compromised by deference to local custom. That tension, between universal rules and local practice, is one the law has not finished working out, and the International Criminal Court's evolving jurisprudence on gender-based crimes is among the places where that work is still under way.