Contemporary Challenges to the Implementation of International Humanitarian Law

Abstract

The problem of how to deal with prisoners of war is not a new one; even the Old Testament calls for humane treatment of those captured in the course of armed conflict. The issue has assumed significant contemporary relevance as a result of developments in Iraq and Afghanistan. Rights of prisoners/detainees during armed conflict is governed by the Law of Armed Conflict (formerly referred to as the Laws of War), or what is probably better known today as International Humanitarian Law. There is an obligation on all states and armed forces to ensure that international humanitarian law is upheld. This involves a responsibility to disseminate information and educate populations, but especially members of armed forces, regarding the principles of international humanitarian law. This branch of international law has always come under pressure during armed conflict, and the current conflicts taking place in Iraq and Afghanistan are no exception. In ancient times the concept of prisoners of war was unknown. Captives were regarded as part of the spoils of victory, and they were frequently killed, enslaved, or held for ransom. Not surprisingly, prisoners of war have traditionally been among the most vulnerable groups in situations of armed conflict. Their treatment is a question with which the laws of war have been particularly concerned. Their detention is a form of permissible internment, and it should come as no surprise to learn that the laws governing armed conflict lay down detailed rules for their protection. This article examines the origins of the laws of war and their relationship to international human rights law, with particular reference to the protection provided to prisoners of war. A serious obstacle confronting those charged with ensuring compliance with the norms of humanitarian law is to make the rules establishing such norms accessible and relevant to those most responsible for their implementation, i.e., the soldiers on the ground. The language of the international instruments in question is often obtuse and unintelligible. The principles enshrined in these instruments, when combined with a “dumb down” approach for classroom instruction, are often presented in a half-hearted and “touchy-feely” way that makes the instructors and principles involved appear out of touch with reality. Best has described the situation as follows: