Ancient civilizations, empires like the Byzantine Empire’s Code of Justinian, to religious books bear testimony to the fact that humanitarian law and laws of war exist to contain the ravages and tyranny of war. Perhaps the need to systematize was felt only during the Second World War when ghastly crimes against humanity were executed.
To reiterate military necessities and simultaneously balance the concerns of humanity, International Humanitarian Law (IHL) was brought into force.
Jus in Bello, also referred to as IHL, aims to protect human beings from the consequences of armed conflicts. Rules of Humanitarian Laws lay down the Principle of Humanity, the Principle of Military Necessity, the Principle of Distinction between Civilians and Combatants, the Principle of Proportionality, etc.
It equally applies to parties in such conflicts, irrespective of the reasons that have led to the conflict. To regulate and safeguard the implementation of the aforementioned law, Geneva Conventions, Additional Protocols, etc., have also been applied which constitute the pillars of IHL. The intervention of this law has produced both successful and unsuccessful outcomes.
Curbing the effects of war has become a universal concern but events of armed conflicts, especially over the last ten months, have taken a petrifying turn. The tension between Russia and Ukraine is still not showing any signs of waning. A list of grave violations of not only Humanitarian Laws but also Human Rights is still being reported.
However, violations to such a great extent have been disregarded for years; the said Law stands violated in Yemen, Syria, etc. as well.
Almost all the Geneva Conventions have been violated amidst the armed conflict going on currently. The IHL considers medical facilities subject to attacks. Dejectedly, till May 2022, around 200 attacks have been carried out on healthcare facilities in Ukraine, e.g. March 9 attack on Mariupol’s maternity hospital, and Chernihiv Regional Children’s hospital.
Such attacks are said to have resulted in the violation of the first Geneva Convention (Article 18, 20-22) which protects wounded and sick people as well as mentions that medical facilities should not be targeted.
International Humanitarian Law prohibits human shielding as well as per Article 23 Geneva Convention III, Article 28 Geneva Convention IV r.w Article 5(1)(7) of Additional protocol. According to a BBC news report, many villagers of Obukhovychi said that they were taken at gunpoint from their homes to school to stop the approaching Ukrainian forces.
Thousands of bodies of civilians were found in the Battles of Bucha and Irpin. On the other hand, National Defence Control Centre’s head also pointed out Ukraine militants for human shielding more than 4.5 million civilians.
Article 4 and Article 27 of the 4th Geneva Convention proclaim the principles of respect for humans and protect the character of basic rights of men and women. The Independent International Commission of Inquiry has found reasonable ground to report that the commission of unlawful confinement, torture, ill-treatment, rape, etc., have been committed by Russian armed forces.
Shockingly, the families of victims were sometimes forced to witness the crimes.
IHL protects civilians from such armed conflicts. However, Dormition Cathedral was recently damaged, and strikes by Russia in Kyiv, Dnipro, Sumy regions etc., damaged or destroyed civilian objects/ infrastructure/ residential buildings and many energy facilities.
Evidently violating the principle of Proportionality (attacks are prohibited where excessive incidental civilian harm w.r.t solid military advantage is expected), the principle of Distinction between civilians and combatants, the principle of Military Necessity (required degree of force to achieve legitimate purpose of conflict).
There is also reasonable ground concluded by two think tanks that Russia breached two Articles of Geneva Convention 1948 by publicly inciting genocide and forcing transfer of Ukrainian children to Russia. Documents regarding this have already been submitted by many member states in the International Court of Justice.
An assertion of violating Article 56 of Protocol 1 (Geneva Convention 1948) has been made against Russia by Ukraine stating that nuclear infrastructure was attacked in series in Chernobyl Nuclear Power Plant and Zaporizhzhia Nuclear Power plant, highlighting the need for international discussions and agreement to ensure nuclear safety during war.
The Office of High Commissioner of Human Rights reported some violations by Russia and Ukraine in conflict with ill treatment of prisoners of war, citing extrajudicial executions, sexual violence, etc., abridging Article 13 of the 3rd Geneva Convention which lays down various privileges during captivity and certain good acts like providing food, medical care, etc.
The time has come to address atypical needs of humanitarian crisis going around the globe. The civilian population is immensely suffering under the impact of these violations, mentally and physically. Foremost, the parties of both sides must agree to peacefully carry out relief operations and distributing humanitarian aid, thus ensuring the freedom of movement of related personnel as essential.
The fixation of liability, beyond doubt is imperative. The principle of universal jurisdiction can be applied where above discussed serious violations of Humanitarian Laws have resulted in war crimes. This refers to empowering a nation’s judiciary to investigate and even punish war crimes though they were not committed within its territory, against one of its nationals, etc. (based on the principle of harming international order and community welfare). As suggested by some experts, ad hoc tribunals can also be constituted for the crime of aggression.
A separate committee should be set up which primarily deals with the process of collecting information regarding people missing, at risk, and dead and address the concerned issues.
To make sure that prevailing rules are respected, a much-needed action is to strengthen domestic laws. It is the duty of the State to impart these rules to armed forces. Cutting down the political influences, this Law should be given exclusive power to take actions.
Fundamental Rights of the people such as right to be secured from torture, to ensure judicial review of lawfulness of detention, and, of course, the right to fair trial must be given due consideration even during such conflicts. Unless the contravention of the IHL comes to an end, the states will always have to face the question of impending harm to humanity.
By Aditi Vyas, LLM, Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara