INTERNATIONAL HUMANITARIAN LAW AND THE PROTECTION OF VICTIMS OF WAR

ABSTRACT

The evolving nature of IHL has seen the rules and principle blossom mover time. It is not until the second half of the nineteenth century that nations agreed on International rules to avoid needless suffering in war.International Humanitarian Law (IHL), also known as the Law of Armed Conflict or the Law of War, is the body of rules that, in wartime, protects persons who are not or are no longer participating in the hostilities; and seeks to limit the methods and means of warfare while preventing human suffering in times of armed conflict. The principle instruments of IHL are the four universally ratified Geneva Conventions of 1949 as well as the three Additional Protocols of 1977 and 2005, as they stipulate that civilians and wounded or captured combatants must be treated in a humane manner.With the Raging forms of International conflicts around the World, which are eclipsed by extreme violence to Men, Women and Children, ensuring accountability for violations of International Humanitarian Law for individual perpetrators and for parties to the conflict, is one of the challenges to achieving more effective protection of victims in armed conflict. Many conflicts to a large degree has the absence of accountability and, worse still, the lack in many instances of any expectation thereof, which in turn allows violations to thrive.The major objective of this research shall be to examine the purpose, substance and scope of International Humanitarian Law and the potential of International Humanitarian Law as a tool to achieve and maintain peace and protect rights of persons. The objectives includes to properly define the  practice of International Humanitarian Law, to identify who the victims of war are and examine the privileges, obligation and protection guaranteed by International Humanitarian Law, Finally to analyse how International HumanitarianLaw provisions are implemented in the protection of victims of war.The methodology chosen is more of a doctrinal approach which isqualitative in order to reach an understanding of the current position of International Humanitarian law and most especially the victims of war. The primary source of materials for this researchworks are the Treaty Laws, textbooks, law reports and journals on international humanitarianlaw
 

CHAPTER ONE/INTRODUCTION

1.1 Background to the Study

An individual is entitled to certain basic minimum rights whether in times of peace or in periods of war. Unfortunately, although the ideal situation is for people, nations, or states to be at peace with one another, the reality is that armed conflicts continue to be waged around the world and claims an increasing number of victims, in particular, those who should remain immune under the law: the civilian population.1 War involves a situation of armed conflict consequent upon hostile relations with the objective of producing the winner and the vanquished in the pursuit of an objective or objectives for which the war is fought.
As a result of international co-operation, international law relying on the political will of states, created the Laws of War in order to prescribe laws governing resort to force (jus ad bellum); regulate the conduct of hostilities by limiting the force required to overpower the enemy (jus in bello); and to, enunciate the principles governing the treatment of individuals in the course of war.
Jus ad bellum as a branch of the laws of war prohibits armed conflicts and the sole fact of using force in international relations is a serious violation which is regulated by the United Nations Charter2 and customary international law. However, although armed conflicts are prohibited, they are realities of international life and it is necessary to not only combat the phenomenon that is armed conflicts, but also to regulate and to ensure a minimum of humanity in this in-humane and illegal situation.
International humanitarian law (IHL) is, therefore, that part of the laws of war, which seeks to limit the effects of armed conflicts. The essential purpose of these rules is to reduce or limit the suffering of individuals and circumscribe the area of the savagery of armed conflict that is permissible.3 Once there is an armed conflict IHL applies to all the parties, therefore where an aggressor state wages an unlawful conflict, these rules nevertheless binds the state attacked including its armed forces.4
International Humanitarian Law means international rules, established by treaty or custom, which are specifically intended to solve humanitarian
problems that arise directly from international or non-international armed conflicts. For humanitarian reasons, these rules protect persons and property that are, or may be, affected by conflict and limits conflicting parties’ rights to choose their methods and means of warfare. It defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning non-combatants. It is designed to balance humanitarian concerns and military necessity, and subject warfare to the rule of law by limiting its destructive effect and mitigating human suffering.5
HISTORICAL BACKGROUND
The Lieber Code which came into force in April 1863 marked the first attempt to codify existing laws and customs of war. However, the Code did not have the status of a treaty as it was intended solely for Union soldiers’ fighting in the American Civil War.6 Contemporary IHL and its universal codification began in 1864 with the adoption of the First Geneva Convention; the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, which was prompted by the pioneering work of Henry Dunant who upon being influenced by the bloodiest battles of the nineteenth century
In 1863, the International Standing Committee for Aid to Wounded Soldiers convened a conference in Geneva to discuss the feasibility of Dunant’s proposals. The proposals were found to be viable steps to be taken in the protection of war victims. The Swiss government, at the prompting of the organization, took the matter officially and invited all European and several American, states to send their official representatives to a Congress at Geneva in order to discuss an international treaty for the protection of the wounded in armed conflicts. The 1864 Diplomatic Conference was, therefore, convened with twelve states represented. The twelve states adopted the First Geneva Convention and thereby agreed to guarantee neutrality to medical personnel, to expedite supplies for their use, and to adopt a special identifying emblem.
Prior to its codification however, warfare had always been subject to certain principles and customs, IHL was therefore rooted in the rules of ancient civilizations and religions. The first laws of war were proclaimed by major civilizations several millennia before our era: “I establish these laws to prevent the strong from oppressing the weak” said Hammurabi, King of Babylon.8 The existence of rules protecting certain categories of victims of armed conflicts, or regulations limiting or prohibiting the use of certain means and methods of warfare can be traced to as early as 3000 years BC.9
Many ancient texts such as the Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. The concept of ‘chivalry’ which was the basis for much early humanitarian law was part of the Christian tradition. Islam also addressed humanitarian needs, stipulating that women, children and old people should not be killed and did not allow the destruction of houses, fields, or livestock. In the twelfth century, Sultan Saladin ordered equal treatment of wounded on both sides and allowed hospital services to be provided.10
Although the objectives of these customs may not have been humanitarian in nature, they, however, produced a humanitarian effect. For example: the prohibition against poisoning wells was originally made in order to permit the exploitation of conquered areas; the first reason for the prohibition against

1.2 Statement of the Problem

These examples of humanitarian customs in various civilizations exemplify the position that although there was no universally agreed declaration regulating wars until the Geneva Conventions, the underlying idea of inculcating humanity in war is universal in nature.
In spite of their humanitari
an importance, all these ancient rules and customs were subject to certain weaknesses. In most cases, their applicability was limited to specific regions and very often limited to a specific war. Additionally, their implementation was under the sole responsibility of the belligerents. From this historical perspective developed the documented origin of IHL in the mid-19th Century. Up to that point, the practice of the accepted rules of warfare reflected the theories of philosophers, priests or jurists with local and special agreements.
The First Geneva Convention codified and strengthened ancient laws and customs of war protecting the wounded and those caring for them. Since the 1864 Geneva Convention, states have agreed to a series of practical rules, based on the bitter experience of modern warfare. As the international community has grown, an increasing number of States have contributed to the development of those rules.12 In 1906, the Convention was revised and signed by the representatives of thirty-six states. Later in 1868, the
The Hague Conventions developed alongside the Geneva Convention in order to govern the conduct of war. The Hague Conventions- a series of conventions concerning land and naval warfare were adopted and emerged from The Hague Peace Conferences in 1899 and 1907. These conventions sought to provide for the laws and customs of war on land and the adaptation to maritime warfare the principles of 1864 Geneva Convention. At these conferences, limitations on arms, projectiles or materials calculated to cause unnecessary suffering, for example, a prohibition on the use of air bombs and chemical warfare, and expansion of armed forces were proposed.13
The First World War (1914-1918) revealed the necessity to review the 1906 Convention. The era witnessed the use of methods of warfare that were, when not completely new, at least deployed on a scale never seen before. The treaties of 1925 and 1929 were a response to those developments. The 1925 Geneva Protocol to the Hague Convention is considered an addition to the Hague Convention, although not drafted in The Hague; it permanently banned the use of all forms of chemical and biological warfare. This was drafted following the use of mustard gas and similar agents in World War I, and fears that such warfare in the future could lead to terrible consequences.14 In 1929 Two Geneva Conventions were adopted, the first to provide a review and development of the 1906 Geneva Convention and the other a new innovation to provide for the treatment of prisoners of war.
The Second World War (1939-1945) saw civilians and military personnel killed in equal numbers. In 1949, the international community responded to this, and more particularly to the terrible effects the war had on civilians, by revising three Geneva Conventions then in force and adopting a fourth Geneva Convention. These Four Conventions dealt respectively with;
I) Amelioration of the condition of the wounded and sick in armed forces in the field (GC I);
II) Amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea (GC II);
III) Treatment of prisoners of war (GC III); and
IV) Protection of civilian persons in time of war (GC IV) (new).
The 1949 Geneva Conventions particularly the fourth convention were significant in the development of humanitarian law and replaced as between the contracting parties the conventions of 1864 and 1906. After decolonization, however, the new States found it difficult to be bound by a set of rules, which they themselves had not helped to prepare. More so, the treaty rules on the conduct of hostilities had not evolved since the Hague treaties of 1907. Since revising the Geneva Conventions might have
jeopardized some of the advances made in 1949, it was decided to strengthen protection for the victims of armed conflict by adopting new texts in the form of Protocols additional to the Geneva Conventions.
In 1977, two Additional Protocols to the 1949 Conventions were adopted which supplemented the earlier conventions to strengthen the protection of victims of international armed conflicts- Additional Protocol I (AP I) and non- international armed conflicts- Additional Protocol II (AP II). To some degree, AP II can be regarded as an enlargement of Article 3 common to the four Geneva Conventions. The Additional Protocols were a response to the effects in human terms of wars of national liberation, which the 1949 Conventions only partially covered.
Up until 1977, two separate legal systems contributed to the development of IHL; the Geneva Law, mainly concerned with the protection of the victims of armed conflicts; the Hague Law, whose provisions relate to limitations or prohibitions of specific means and methods of warfare. These two legal currents were merged with the adoption of the two Additional Protocols of 1977.
The development of IHL continued and several conventions have thereafter been adopted. The categories of war victims protected by IHL and prohibited weapons have been enlarged and modern treaties adopted reflecting the
most recent conflicts.

1.3 Objective of the Study

The main thrust of this thesis is to investigate the International Humanitarian Law and the Protection of Victims of War

1.4 Research Questions

1. What are the principles of international humanitarian law and the Protection of Victims of War?
2. What are the applicability of International Humanitarian Law?
3. How does Nigerian state implement the international humanitarian law
4. Does Nigerian state in compliance with international humanitarian law ?

1.5 Research Methodology

A legal research of this nature, which involves a consideration of legal meaning and elements of a crime of genocide, with its legal and institutional framework, no doubt predominantly employed a doctrinal research method. This involved primarily a library oriented research. Textbooks on public international law generally and specifically the ones on genocide were consulted. Articles and chapters in books written by experts in this area of law in both local and international publications were employed as a matter of practical necessity.
Principally, international legal instruments also formed the core reference point of this research, not without exploring decided cases in this embryonic area of law. The use of internet materials was a touch point in a research like this, in order to be at home with recent developments on the international human right law. Magazines, Reports and international/local newspapers were also relied upon. It is equally very important to note that interviews conducted by some non – governmental organisations (NGOs) like the Human Rights Watch, Amnesty International etc also constituted part of the materials employed for the necessary legal expositions in this research as second source materials

1.6 Significance of the Research

This research is justifiable, on the premise that it will be of immense benefit to researchers, legal practitioners, and students, actors in international law, particularly international human rights lawyers, international humanitarian lawyers, international criminal lawyers, investigators and prosecutors of the crime of genocide as well as Nigerian judges and Judges of the International Courts/Tribunals

1.7 Scope of the Research

This work were restricted to International Humanitarian Law and the Protection of Victims of War.