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The Conduct of Hostilities under International Humanitarian Law

A nasty business war is. When people harm one another to achieve their goals or purposes, it refers to an armed conflict. Unfortunately, innocent civilians are unnecessarily drawn into this conflict and end up as victims of this despicable situation. As the battle goes on, it gradually assumes its most heinous forms, so it no longer simply affects civilians but also soldiers, prisoners of war, and even inanimate objects like monuments. So, to deal with this, some guidelines were established.

The parent organization that formulated the "The Conduct of Hostilities" guideline to partially control the effects of conflict is the International Humanitarian Law (IHL). To safeguard people during conflicts, the IHL strives to strike a balance and reach a compromise between military necessity and humanitarian considerations. This results in the suffering of soldiers being reduced as well.

Unless they witness the hostile nature of wars, which leave the area completely desolate with several innocent lives lost and historical sites destroyed, people typically dispute its necessity. There have been instances where unnecessary casualties resulted from civil wars, World War 1 and World War 2, for example. People are still suffering as a result of the horrific Hiroshima and Nagasaki bombings that marked the end of World War 2. In each of these situations, persons who were not or no longer active in the battle got embroiled against their will.

'Laws felt silent while the cannons screamed.'

There are a significant number of international laws that address this topic. The terms used to describe warlike events, proportionality, precautions, and prohibition, among others, are crucial and have partially brought about the intended improvements.

The conduct of hostilities is governed and controlled by international humanitarian law. They have established guidelines that mitigate the effects of terrible battles. It states that while there is no limit to the tools and methods of war, it is categorically forbidden to use any that result in needless suffering and devastation. These laws offer strategies for how one side can force the other to submit or weaken its army with the least amount of damage. After watching human suffering and antagonism for so long, these laws are worth working for.

The principles of humanity, neutrality, and impartiality form the foundation of international humanitarian law. These elements make up the law's core and essence.

The activity of Swiss industrialist Henry Dunant in the 19th century is where this noble purpose first emerged. He witnessed the aftermath of the French and Austrian soldiers' battle in Solferino, Italy, in 1859.[1] Numerous soldiers were hurt and died during the conflict. Even after Dunant's efforts and trying to secure supplies for the soldiers, thousands died.

Because of his efforts to address this problem, he is properly credited with creating international humanitarian law. To safeguard the injured, he suggested that individuals be trained to create volunteer relief organizations. Additionally, this was discussed in his book, "A Memory of Solferino." A five-member group was established in response, and in 1863 it became the nucleus of the worldwide committee of the Red Cross. The necessity of it was highlighted so strongly that ambassadors from 16 different countries, military personnel, and men gathered in New York to discuss potential future developments.[2]

And at the meeting, a convention was negotiated, and extensive discussion about humanitarian assistance, medical care, and protection for the defenseless to lessen injury and other effects.

International Humanitarian law:
This rule, which sometimes goes by the name "law of armed conflict," is an expansion of the primary international law that regulates how much force can be used in a fight.

In different ways, the IHL aims to limit and control hostilities and armed conflict, including:
  • By imposing limitations on participants in armed engagements concerning all permissible means, methods, and tactics.
  • Enforcing and carrying out rules that protect persons who abstain from or stop taking part in hostilities.
IHL thus seeks to lessen the harmful effects of the ongoing conflict, especially for those who are innocent and most vulnerable, such as civilians, prisoners of war, injured, ill, or shipwrecked military personnel.

To accomplish the desired outcomes, the IHL regulations are established based on a few core ideas and principles. They are:
  1. Making a distinction between combatants and civilians
    Combatants are members of the armed forces who actively engage in hostilities. The idea of distinction requires the opposing party to distinguish between those who are armed and those who are not at every stage of the conflict. As a result, any battle, strike, or attack should only target military targets.

    For instance, it was a recurring pattern in the wars in Iraq, Afghanistan, Syria, Pakistan, etc. that innocent civilians living in conflict areas were killed in bombings during battles, bringing the overall death toll to roughly 335,000. The divergence appears to be crucial.
  2. Restrictions against attacking those who aren't currently taking part in the conflict.
    People who have stopped actively fighting in the wars should be protected from direct harm. These individuals are known as "out of combat," and this term is used when people stop participating in the war or become too injured to fight. Therefore, killing them would be a legal violation.
  3. Prohibition against causing needless harm.
    Parties to a battle are not allowed to use methods or prohibited media that cause unneeded pain or suffering, i.e., injuries that are more severe than those that are strictly required to achieve military goals and increase the suffering of injured soldiers and civilians to the point where their deaths are inevitable.

    For instance, the USA bombed Japan using atomic weapons to finish World War II. Given that it murdered 80,000 and 40,000 civilians in Hiroshima and Nagasaki, respectively, this can be viewed as unnecessary. The devastation is still being felt today.
  4. The Necessity Rule
    According to the principle of necessity, individuals involved in a battle should only do actions that will weaken their enemy and force them to submit. It is not necessary to completely destroy the opponent, its military troops, or its property.
  5. Proportionality
    In the event that an attack on an authorized military is anticipated to cause severe civilian damage during hostilities, parties are not permitted to undertake the attack.
For instance, Rajiv Gandhi, an ally of the Sri Lankans, sent food, aid, and peacekeeping forces to them during the Sinhalese and Tamil war, which infuriated the Sri Lankan Tamils. The Liberation Tigers of Tiger Ealem killed Rajiv Gandhi with a suicide bombing that also injured about 60 bystanders as revenge for hurting their feelings and supporting the enemy.

The Conduct of Hostilities:
The IHL regulates how hostilities are carried out during wars and armed conflict through techniques and regulations pertaining to targets, restrictions on weaponry, and mentioning legal means of fighting. But the principle that underpins everything is that there should be no harm done to civilians. Therefore, there are limitations on the use of weapons and techniques that cannot distinguish between military and civilian targets.[3] These include poison, incendiary weapons like flame throwers, blind lasers, non-detectable weapons, bombs that detonate or activate when disturbed, and projectiles like flammable materials. They also include chemical, biological, and nuclear weapons.

These rules apply to monumental items like historic sites, houses of worship, and other items of great cultural significance as well as to ordinary people and human resources. Articles 51 to 54 of the International Humanitarian Law refer to it. According to the statement, "It forbids indiscriminate attacks on civilian populations and the destruction of food, water, and other essential supplies."[4]

Whether or not these laws are upheld:

Negative Perspective
The conflict in Afghanistan
Even though the war in Afghanistan has been raging for years�whether against US, Russian, or NATO forces�it has now come to an end. The war was started in opposition to the prevailing Taliban rule and in particular the Al Qaeda organization, for whom Afghanistan served as a haven and base camp. They were responsible for the 9/11 incident, which sparked unrest in several nations.

The following are the contraventions of a huge ocean of rules governing the conduct of hostilities that this protracted war brought to light:
  • The uniform and emblems
    All military and armed forces, including the Taliban, must wear uniforms or another set of distinguishing badges or symbols. However, they chose not to, forfeiting their right to continue claiming to be prisoners of war under international law. A fundamental norm of identification during wars that is the distinction from the civilians was, thus, blatantly not followed, by not adhering themselves to a right uniform.
  • The militant organization Al Qaeda
    Al Qaeda, just like the Taliban, could not claim the status of prisoners of war because of its demeanor. They were an erratic force without a uniform or crest. However, they started to seriously violate international law when they pretended to be civilians and hijacked many airplanes on 9/11, which resulted in the deaths of nearly 3000 civilians.[5] They consistently displayed contempt for the law.
  • Deportation.
    In a flagrant violation of the law, prisoners were moved from Afghanistan to Guantanamo Bay in Cuba. Regardless of the reason, it is against the law to deport or transfer from an occupied nation to the territory of the occupying power or any other country, whether it is occupied or not. [6]
  • Weapon
    Both sides of the conflict openly employed illegal weaponry. The Taliban utilized it to instill fear throughout the nation to occupy it. In addition to torturing citizens who disobeyed their orders, they also damaged important historical sites like the Bamiyan Buddha.

    The same was seen on the part of the USA. Target killing and unmanned aerial vehicles were their strategies. The Red Cross Rule, which declares that "The use of lethal force attributable to a subject of international law with the intent, premeditation, and deliberate killing of individually selected persons who are not in the physical custody of those targeting them," was forbidden as a result.[7]
  • Civilians
    The war in Afghanistan, which lasted the longest in American history and resulted in tens of thousands of deaths, was conducted in direct violation of international law, which has as its core principle the protection of innocent people. There are likely more casualties than have been reported, including 47,245 Afghan civilians, 1,144 NATO members, 444 relief workers, 72 journalists, and 3846 US contractors.[8]
  • Women and Children
    In recent years, Afghanistan has experienced the cruelest forms of warfare, particularly when it comes to violence against women and children, who are the most defenseless members of the civilian population. Both US and local troops frequently sexually assaulted women and girls. In the past, a news story has claimed that Afghanistan is experiencing an "epidemic" of military sexual assault and rape.
It is against the law for children under the age of 15 to be enlisted in the military or take part in hostilities, according to a special provision of international law for minors.[9] Nevertheless, it was seen that kids started undergoing military training at a very young age, learning how to use weapons and take part in combat.

Also, thousands of boys and girls were killed, injured, and exposed to sexual harassment without access to any basic needs in the past few years.[10]

Positive Perspective
Combatants in a state of war are never expected to adhere to the laws established as they cannot, yet it is commendable to observe situations where the laws were respected to some extent, such as:
  • In the Gulf Wars, despite all the conflict, everyone witnessed the capture of Saddam Hussein, and the procedures of the trial conducted were under the framed law.
  • According to a rule, anyone who does not wear a uniform or bear an emblem is permitted to carry firearms openly, something the Taliban did on occasion.
  • During the most recent conflict in Israel, the Israeli army was spotted telling the Palestinians in the Gaza Strip to leave the building they planned to bomb empty before attacking it to prevent the deaths of civilians.
  • The Indo-China conflict, which has been raging for many years at a time, has only been confined to the borders and only directly involved parties.
  • As was previously mentioned, there are regulations for the protection of monuments. As a result, during World War II, a famous incident occurred in which an army known as "The Monument Men" was formed to protect and save the majority of the artistic treasures, monuments, and other cultural landmarks from Hitler, who was planning to destroy them.
The recent Russia-Ukraine War
For a variety of geopolitical reasons, Russia has been at war with Ukraine and maintaining its hold on it. Because Ukraine was so determined to follow the West, Russia tried to apply pressure on it. As a result, Ukraine was the target of attacks and a war, which had disastrous consequences. This conflict had various aspects of hostilities that were governed by international humanitarian law, much like any other conflict:

It was expressly forbidden to assault civilian targets. This comprised buildings such as residences, business offices, hospitals, and cultural monuments. However, there is one exception: attacks on these locations are not allowed unless they are being used for military purposes, in which case they become military targets.
  • As times have changed, these regulations now cover cyberattacks as well. These assaults must only be made with a military purpose in mind and must be arbitrary or excessive. Any cyberattack that, for instance, disrupts the entire electrical grid and causes long-term harm to citizens would be illegal.
  • Today, the internet and cell phones are essential resources. When it is down during combat, both the military and civilians are unable to communicate on topics pertaining to their safety. Additionally, it hinders the work of reporters, reporters, and human rights watchdogs who are on the ground gathering information for the public.
  • Journalists have a key role in these situations. They receive the same treatment as civilians. They are subject to constitutionally protected limitations on their right to free expression, but they should not be detained or otherwise punished for just performing their job as journalists.

Flaws and gaps in international laws related to the conduct of hostilities:

International law is no different from other laws in that it has weaknesses.

Given that it contains certain contentious elements, namely [11]:
  • Due to the complexity of the provision, questions are regularly raised about how precisely casualties are estimated or tallied.
  • Wealthy nations adhere to the laws, which include the use and ban of weapons, to some extent, and can introduce alternatives because they have the resources to do so. This gives them an advantage over lesser nations, who rarely adhere to the rules and utilize illegal methods. Syria, for instance, has been charged with employing sarin and chlorine as toxic gases.
  • According to IHL, prisoners of war and civilians caught up in combat must be treated humanely and without making any "adverse distinctions" based on their gender, ethnicity, nationality, religion, political views, or other characteristics.[12]

    Among civilians, women are particularly weak and abused. Without a doubt, IHL should be respected for upholding the idea of equality by not making a distinction between civilians based on gender, which runs counter to the number of women who are targeted for rape and other forms of sexual abuse during the war. Therefore, they should receive special consideration.
  • Because the definitions for crucial concepts like prisoners of war are inaccurate and ambiguous, there is occasionally controversy on these subjects.

Because IHL cannot ensure humanity in armed conflicts, there have been several upsurges and blatant legal violations in recent years. IHL cannot protect everyone, everywhere at all stages of war, and nations are also unable or reluctant to apply the law because they must first safeguard their sovereignty. Instead, a number of distinctions between armed conflicts and other forms of violence that are not covered by IHL are expected to be governed by IHL norms, such as the presence of civilians versus combatants, military aims against civilian targets, and own versus occupied territory.

The complicated circumstances of today's armed conflicts, which rarely involved the regular armies of well-organized and well-established States, make it often challenging to apply such basic distinctions.

Nevertheless, this legislation made a significant contribution. These are crucial in to minimize the victims, effects, and aftermath of violent warfare.

  2. Supra note 1.
  3. International court of Justice, 'Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons' (1996) Pg. 257.
  4. American Red Cross, 'Summary of the Geneva Conventions of 1949 and Their Additional Protocols' (International Humanitarian Law, April 2011)
  5. Yoram Dinstein, 'the conduct of hostilities under the law of international armed conflict' (Cambridge University Press 2004) pg. 49.
  6. Geneva Convention (Geneva, 27th July 1929) entered into force 21st October 1950, art 49.
  7. International committee of the Red Cross (Geneva, 17th February 1863) targeted killing in international law, entered into force 22nd August 1864.
  10. United Nations, 'Report details grave violations against children in Afghanistan' (UN News, 16th August 2021)
  11. Ishita Chakrabarty and Hardik Choudhary, 'Participation in the Conduct of Hostilities and State Restraint on Killing' (2018) 9 QMLJ 49, pg. 56-58.
  12. Rachit Garg, 'protection of women and children during armed conflict under international humanitarian law' (blog ipleaders, 16th September 2021)

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