Introduction

International humanitarian law (IHL) is applied in the armed conflict to protect those who do not take part in the hostilities or no longer taking part in the hostilities. Despite, the absence of any international document the earliest societies followed some rules of war during conflict based on either the instructions of the community leader or customs or religions. The International Committee of the Red Cross (ICRC) promotes and strengthens IHL in an endeavour to prevent suffering during a conflict. The ICRC draws its mandate from the international community. This paper traces the historical evolution of the contemporary International Humanitarian Law and outlines the critical role that the ICRC plays as the guardian and promoter of IHL.

Historical Evolution of Contemporary International Humanitarian Law

Since time immemorial, efforts have always been made to protect individuals from the worst consequences of war. Nevertheless, international treaties regulating warfare, including rights and protection for victims of armed conflicts emerged in the second half of the 19th century.[1] The laws of war are as old as war itself and war are as old as life on earth. In past societies, the victory was followed by a massive massacre. The code of honour then had completely prohibited surrendering. Thus, warriors had to win or die. However, the wounded soldiers were collected and cared.[2] Therefore, although, first documented in 1863 after the war of Solferino, the rules of conflict or war existed and were practised from the beginning of human being.

Henry Dunant, a Swiss businessman, and Guillaume-Henri Dufour, a Swiss army officer played a vital role in the emergence of contemporary IHL. In 1859, Dunant witnessed the gloomy aftermath of the battle of Solferino while travelling in Italy. On his return to Geneva, he wrote a book entitled A Memory of Solferino, published in 1862 in which he recounted his experiences. General Dufour, lent his active moral support for Dunant’s ideas. For instance, he chaired the 1864 diplomatic conference at which the original Geneva Convention was adopted. Earlier, in 1863, Dufour, Gustave Moynier, Louis Appia and Théodore Maunoir and Dunant founded the ‘Committee of Five.’ It was an international committee for the relief of the military wounded. This is what later in 1876 became the International Committee of the Red Cross.[3]

At the prompting of the five founding members of the ICRC, the Swiss government convened a diplomatic conference in 1864. Sixteen (16) states attended. They adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. This was the birth of modern IHL.[4]

The scattered provisions of Law of Armed Conflict (LOAC) were accumulated in the documents such as; the Lieber Code in 1863 and the first Geneva Convention in 1864. After that, on many Conventions, Protocols, Declarations on Armed Conflicts (AC) have been adopted in various time depending on the nature of conflict and protection of the victims. The four Geneva Conventions in 1949, its three Additional Protocols (APs) in 1977 and 2005 and the permanent International Criminal Court in 1998 have contributed immensely to the development of IHL.[5] The IHL has now become a significant branch of international law which has been accepted by all countries of the world. The modern IHL is found in many religious books particularly the Holy Quran and the Hadith which significantly contributed towards the development of IHL.[6]

Formally, therefore, the process of documentation of IHL began from the adoption of the Geneva Convention of 1864. From that time, many conventions, regulations and declarations on the laws of Armed Conflict (AC) have been adopted and enacted both nationally and internationally till 1948. However, the most significant documents of IHL were adopted in 1949 and 1977. This was done by adopting GCs and its Additional Protocols in 1949 and 1977 respectively.  It must be noted that, initially, the Additional Protocols (APs) lacked the provisions regarding conventional weapons.  This, however, was fulfilled, later on, by conventions on Conventional Weapons in 1980 and its five protocols.  Besides, the Rome Statute of the Permanent International Criminal Court in 1998 made a significant contribution to the full development of IHL.[7]

Despite its importance, the IHL has not been signed and ratified by all states of the world like General Conferences. The world communities that have ratified the conventions and protocols, many of them did not enact sufficient state legislation to insert the provisions of Geneva laws and other international documents for proper and effective implementation of IHL.[8]

Critical role of the ICRC as the guardian and promoter of IHL

The ICRC is the founding member of the International Red Cross and Red Crescent Movement. As a humanitarian institution, it is impartial, neutral and independent. It draws its mandate was from the international community. The ICRC acts as a neutral intermediary between belligerents. It is a promoter and guardian of international humanitarian law, thus, works hard towards the protection and assistance of the victims of armed conflicts, internal disturbances and other situations of internal violence. By 2003, the ICRC was active in about 80 countries and had about 11,000 staff members.[9]

The ICRC promotes and strengthens IHL and universal humanitarian principles in its endeavours to prevent suffering.[10] During international armed conflicts, the ICRC draws its legal status or mandate on the four Geneva Conventions of 1949 and Additional Protocol I of 1977. These treaties put forward the ICRC’s right to carry out certain activities such as bringing relief to wounded, sick or shipwrecked military personnel, visiting prisoners of war, aiding civilians and, in general terms, ensuring that those protected by humanitarian law are treated accordingly.

However, during non-international armed conflicts, the ICRC draws its legal status from Article 3 common to the four Geneva Conventions and Additional Protocol II. Article 3 also recognises the ICRC’s right to offer its services to the warring parties to engage in relief action and visit people detained in connection with the conflict.

In violent situations that do not amount to an armed conflict, the ICRC draws its mandate from Article 5 of the Movement’s Statutes. The article sets out among other things the ICRC’s right of humanitarian initiative. This right may equally be invoked in international and non-international armed conflicts. Therefore, all these articles and laws together form the mandate or legal status bestowed on the ICRC by the international community, i.e. by the States.[11]

Since it is the promoter and guardian of international humanitarian law, the ICRC encourages respect for the law. This is done by spreading knowledge of the humanitarian rules and by reminding parties to conflicts of their obligations. The ICRC reminds nations that they have undertaken to make the humanitarian provisions known. It equally takes its action to this end. Furthermore, the ICRC reminds States that they must take all the necessary steps to ensure that the law is applied effectively and respected. It does this mainly through its Advisory Service on international humanitarian law. The Advisory Service provides technical guidance to States and helps their authorities adopt national implementing laws and regulations.

The ICRC also makes confidential presentations to the relevant authorities in the event of violations of humanitarian law. If the violations are severe and repeated and it can be established with certainty that they have occurred, the ICRC reserves the right to take a public stance; it does so only if it deems such publicity to be in the interest of the people affected or threatened. This, therefore, remains an exceptional measure.[12]

Conclusion

On many Conventions, Protocols, Declarations on Armed Conflicts (AC) have been adopted to give birth to the contemporary IHL. The ICRC endeavour to prevent suffering during the conflict. It works towards the protection and assistance of the victims of armed conflicts, internal disturbances and other situations of internal violence. The ICRC encourages respect for the law. During international armed conflicts, the ICRC draws its legal status on the four Geneva Conventions of 1949 and Additional Protocol I of 1977. During non-international armed conflicts, the ICRC draws its legal status from Article 3 common to the four Geneva Conventions and Additional Protocol II.

References

Bothe, M. (2008). The law of neutrality. In D. Fleck (Ed.), The handbook of international humanitarian law (2nd ed.) (pp. 571-604). Oxford: Oxford University Press.

International Humanitarian Law (2018), What is the origin of the International Humanitarian Law. https://blogs.icrc.org/ilot/2017/08/07/origins-international-humanitarian-law/.

International Humanitarian Law. Answers to your questions. https://www.icrc.org/en/doc/assets/files/other/icrc_002_0703.pdf.

Islam, M. (2018), The Historical Evolution of International Humanitarian Law (IHL) from Earliest Societies to Modern Age. Beijing Law Review, 9, 294-307.

Mackintosh, K. (2000). The principles of humanitarian action in international humanitarian law. London: Overseas Development Institute.

Pictet, J. (1984). Development and Principles of International Humanitarian Law. Leiden: Martinus Nijhoff Publishers.

[1]International Humanitarian Law (20180 What is the origin of the International Humanitarian Law. https://blogs.icrc.org/ilot/2017/08/07/origins-international-humanitarian-law/

[2] Pictet, J. (1984). Development and Principles of International Humanitarian Law. Leiden: Martinus Nijhoff Publishers.

[3] International Humanitarian Law (2018) What is the origin of the International Humanitarian Law. https://blogs.icrc.org/ilot/2017/08/07/origins-international-humanitarian-law/

[4]Ibid

[5] Islam, M. (2018) The Historical Evolution of International Humanitarian Law (IHL) Earliest Societies to Modern Age. Beijing Law Review, 9, 294-307.

[6] Ibid

[7] Ibid

[8] Mackintosh, K. (2000). The principles of humanitarian action in international humanitarian law. London: Overseas Development Institute.

[9] Ibid

[10] Bothe, M. (2008). The law of neutrality. In D. Fleck (Ed.), The handbook of international humanitarian law (2nd ed.) (pp. 571-604). Oxford: Oxford University Press.

[11] International Humanitarian Law. Answers to your questions. https://www.icrc.org/en/doc/assets/files/other/icrc_002_0703.pdf

[12] International Humanitarian Law. Answers to your questions. https://www.icrc.org/en/doc/assets/files/other/icrc_002_0703.pdf.