International Humanitarian Law: Protecting Rights and Promoting Welfare During War?

Abstract

What happens to human rights in time of war/armed conflict, when the most basic of human rights, the right to life, can be denied legally? There are two main types of international human rights mechanisms: International Human Rights Law (IHRL), dealing with rights at all times, and International Humanitarian Law (IHL), dealing with rights during the special circumstances of war/armed conflict. The development of mechanisms to promote IHL in times of war began to emerge in the late 19th century culminating in the 1949 Geneva Convention(s) after WW2. IHL was designed by states, established by states, signed by states and enforced by states to serve the purposes of states. It developed historically in response to changes in the nature of war, weaponry, technology and medical advances. It also developed, if much more slowly, to try and cover the increasing involvement of ‘non-state’ forces in armed conflicts, particularly since WW2. However, the latter has posed a number of difficulties at a time when most wars/conflicts now involve non-state forces to some degree or another. While all combatants (state or non-state) have responsibilities to uphold IHL, it is usually only states, which are allowed to sign the IHL treaties. It is also generally up to states themselves to decide whether non-state combatants are recognised as such under IHL and thus benefit from its protections - such as captured combatants being treated as prisoners of war (POWs). Most states are not prepared to offer such ‘legitimacy’ to non-state combatants however.The chapter critically assesses the role of IHL and IHRL in protecting the lives and welfare of people, particularly civilians in conflicts in the world today