Understand International Humanitarian Law: A Primer on IHL and Pakistan's Domestic Law

Abstract

The following document on international humanitarian law (IHL) is a selective examination of the law of armed conflict in a context most relevant to Pakistan. IHL is a subsidiary body of public international law that governs armed conflicts, which may be either international or internal. International armed conflicts are those between two or more opposing states and non-international armed conflicts are those between states and non-state armed groups or between two such armed groups (A more detailed examination of these and other introductory concepts is provided in Chapter I). During an armed conflict, Pakistan is bound by customary rules of IHL as well as the four Geneva Conventions of 1949 to which it is a party. In addition, Pakistan is a signatory to Additional Protocols I and II. Human rights law is also applicable, in many cases, during an armed conflict, particularly non-international armed conflicts. To that end, Pakistan is a party to several core human rights instruments, including the International Covenant on Civil and Political Rights. In light of the above, several questions on the relevance of IHL arise, its application in Pakistan's context and on the role of this primer. The following questions seek to clarify the existing domestic perceptions regarding IHL: Why is it important to understand IHL? IHL is a set of rules that, for humanitarian reasons, seek to limit the effects of armed conflict. It is a body of law that protects persons not engaged or no longer engaged in hostilities and places limitations on the methods and means of warfare1. Thus, for the protection of those persons most vulnerable during hostilities, IHL exists as a set of rules limiting what is permitted in warfare. It is of interest to all parties to a conflict to observe and incorporate IHL, as it is applicable to all parties in a conflict, to provide protection to all persons engaged in and affected by the hostilities. Why is IHL relevant to Pakistan? Pakistan's security concerns are diverse and persistent. In certain areas, the Armed Forces are engaged in frequent skirmishes with violent non-state actors and in others the Civil Armed Forces and law enforcement are working to contain anti-state movements and political violence. In many major cities, violent acts of terrorism in schools and other areas frequented by vulnerable persons have become the norm. Within this climate of ongoing unrest, it is important to understand when and to what extent IHL applies. This is as opposed to the exclusive application of human rights law, which may be considered the ongoing law of peacetime. Where hostilities rise to threshold of an armed conflict, it is imperative for a state to know the manner and level of deadly force that is permitted. Thus in Pakistan's case, where internal disturbances may eventually develop into non-international armed conflicts, the importance of IHL increases when determining how to combat the violence. From the perspective of a domestic stakeholder, however, such distinctions may seem unimportant. This is because the domestic law implementing IHL in Pakistan is limited. At present, there is little differentiation in how to address situations that amount to armed conflict and those that do not. It would be inherently beneficial to thus incorporate IHL and to generally improve Pakistan's compliance with international legal obligations. How is this document helpful? This document was created to assist domestic stakeholders (i.e. policymakers, members of the judiciary, members of the Armed Forces, law enforcement, academics, etc.) to develop both an understanding and appreciation of IHL. The intent is to promote Pakistan's compliance with its obligations under IHL and to provide clearer guidelines for the Armed Forces and Civil Armed Forces engaged in military and law enforcement operations. The manner in which the following chapters are organized reflects not the entirety of applicable IHL, but rather a limited selection of relevant legal principles and customary rules. As a whole, this document is intended to be a user-friendly introduction meant to build the capacity of a domestic audience. With this in mind, certain related provisions of domestic law were incorporated to ease apprehensions regarding the compatibility of domestic law with IHL principles. This document is not a definitive legal interpretation of the relevant law, but rather a practical tool meant to introduce concepts of IHL into the domestic context. It should therefore prompt further exploration of IHL, its application within Pakistan and the improvement of domestic compliance with its provisions.