Humanitarian Law and the Law of War in the ICRC Databases: the Power of Integrated Information

By Marylin Johnson Raisch*

Many questions have been raised about process and procedure in international tribunals as well as in regional or national courts dealing with difficult questions of international law. While commercial law lends itself to open discussion of how parties may be able to reach agreements about how their disputes may be resolved, where, as in the WTO regime, there is an accepted path to enforceable dispute resolution, some areas remain complex arenas of conceptual ambiguity. The law of war (known in much of the literature as the Law of Armed Conflict, LOAC) in its situation alongside International Humanitarian Law (IHL), constitutes one such lingering debate. With continuing conflicts simmering and potentially destabilizing several parts of the world, how are diverging perspectives to find a starting point?

In a brief but necessarily incomplete review of a now vast array of literature on the Geneva Conventions and the role of IHL as well as International Human Rights law (IHR), this post suggests that convergence of different types of relevant information in one database, with easy access to commentary and a kind of taxonomy of principles, may clarify the questions to be answered even if not all the answers themselves.
Some questions that have arisen in the English language literature since the 2003 Iraq war , and the questions raised about detainee rights for those captured and held under United States authority in the prison at Guantanamo include the following: is it true that LOAC and IHR are or should remain separate regimes for soldiers and civilians, as one reading of the classic Pictet commentary suggests, with human rights fully available in times of peace and LOAC/IHL qualifying those rights during wartime?[2] Have IHR and IHL regimes merged, as the plights of victims, civilians, “freedom fighters” become exposed both in civil wars and in international conflicts?[3] Are principles of LOAC the rules  evolved from the ancient game of war, and is IHL an intruder in the game?[4] What about non-state actors or armed groups and the LOAC rules?

The law of war is in fact now the law of the battlefield, and has sources both in international treaties and customary international law. The International Committee of the Red Cross (ICRC), in its historic role advocating for the Geneva Conventions to protect victims of war of many types and as a neutral international organization, has created a set of databases for the exploration of the complex legal issues associated with war’s effects- on wounded, prisoners of war, and civilians. Given the controversy surrounding the very status of various combatants in the modern terrorist “wars” and networks of guerilla cells, the ability to research the commentary of the ICRC itself, and its most respected scholars, is essential.

Most of the issues in the evolving story of LOAC and IHL-versus-IHR told through the many law review and treatise commentators of recent years can be explored through the ICRC “War & Law” portal, linked clearly from the landing page of the ICRC . When the portal is open to show a view of all the sub-portals, the topics are revealed that relate to the “legal basis for our action” and consist of 1) conduct of hostilities (jus in bello); 2) domestic law and IHL, including a national implementation database by topic and country; 3) how does law protect in war? (which actually addresses the IHL and IHR intersections at the core of the debate on convergence of those approaches described above); 4) treaties and customary law  (introducing the primary source databases, one on the treaties and states parties and the other the customary international law by rules and by country; a clear statement is made of the last date of updating the information. The sources are also listed and, where possible, links to the treaties and historic instruments such as the Lieber Code of 1863, the Hague Rules of Air Warfare of 1923 and on through the Nuremburg Principles and up to the present collections of  agreements and principles of the UN, between various states, and bilateral agreements as well); 5)  IHL and other legal regimes (providing distinctions between the jus in bello conduct of war rules as opposed to the reasons for war, jus ad bellum); and eight other sub-portals on weapons, policy, protected persons, and a link of their influential journal, International Review of the Red Cross. Most of the legal sections listed above preserve a right-hand navigation into primary materials and the Jean Pictet commentary text on the 1949 Geneva Conventions: I (wounded in the field), II (wounded and shipwrecked at sea), III (prisoners of war) and IV (civilians). The 1977 Protocols, I, II and the 2005 Protocol III (merely adds another distinctive emblem for humanitarian workers) are included along with later related treaties.[5]

Integrating all sources and perspectives of the ICRC is not to imply that commentators around the world are in agreement with all its interpretations. One set of answers about detainees who may be considered “unlawful” or “illegal” combatants and their status may be answered with reference to jus cogens norms, and at least one commentator believed this is an answer preferable to merging the different spheres of IHR and IHL, recognizing that some human rights are suspended through derogations to those treaties during wartime.[6] The ICRC updates and recognizes emerging principles as part of the dialogue in the commentary and sources, and these are categorized as distinct from the primary materials; the research must be supplemented with sources outside the ICRC.[7]

Integration of the sources and issues is still recommended as the best starting place for the most informed approach to a complex set of issues at the heart of why international law came to be: to limit war.



*Associate Law Librarian for International & Foreign Law, Georgetown Law Center. Email: mjr47@law.georgetown.edu

[2]See, e.g., Robert J. Delahunty and John C. Yoo, What Is the Role of International Human Rights Law in the War on Terror?,  59 DePaul L. Rev.803, 812-818 (2009-2010) (quoting Pictet, Humanitarian Law and Protection of War Victims 15 (1975)). While the authors’ view represents perhaps one extreme of the perspectives on LOAC and IHR, statements of evolving standards and merged principles now appear in standard scholarly presentations of human rights and humanitarian law. See Robert Kolb, Human Rights and Humanitarian Law in Max Planck Encyclopedia of Public International Law (RĂ¼diger Wolfrum, ed., 2012) (supporting progressive merger of IHR and IHL under various approaches).
[3] Kolb, Id. at [page].[online para 22 ff]
[4] Kyndra Rotunda, Applying Geneva Convention Principles to Guantanamo Bay, 43 U. Rich. L. Rev. 1067, 1069 (2008-2009) (asserting that laws of war before the late eighteenth century did not exist with regard to standards of treatment for prisoners of war).
[5] Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114; 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217; 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316; 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516; 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3;Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609; 26 I.L.M. 568 (1987);  S. Treaty Doc. No. 100-2 (1987); Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005, 45 I.L.M. 558.
[6] Ingrid Detter, The Law of War and Illegal Combatants, 75 Geo. Wash. L. Rev.1049, 1085 (2006-2007).
[7] See, e.g., ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (May 2009) http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf and ASIL Insight, Copenhagen Process Principles, http://www.asil.org/insights/volume/16/issue/39/copenhagen-process-principles-and-guidelines-handling-detainees