1. Introduction
Armed conflicts fundamentally challenge the protection of human rights and the application of international humanitarian law (IHL). In the midst of modern warfare, a crucial legal and ethical question persists: what laws apply when a nation is at war? The debates persist regarding the concurrent applicability of IHL as a ‘lex specialis’ and international human rights law (IHRL) as a ‘lex generalis’ during hostilities. This article examines how human rights obligations endure in armed conflicts and how IHL complements or supersedes them in specific situations. While IHL, derived from the Geneva Conventions, regulates wartime conduct as the specialized law for conflict, IHRL, enshrined in treaties like the International Covenant on Civil and Political Rights (ICCPR 1966), mandates protections universally, creating a comprehensive legal shield for individuals. Nevertheless, it is widely recognized that serious human rights violations, including arbitrary killings and detention, forced displacement and child recruitment, and sexual violence, significantly increase in times of armed conflict.
2. Theoretical Framework
The principles of IHL, mainly derived from the Geneva Conventions and Additional Protocols, (AP) regulate the conduct of war, aiming to limit its brutality. Simultaneously, IHRL, as embodied in treaties such as the ICCPR, mandates protections that apply both in peacetime and during conflict, affirming that a state’s human rights obligations do not cease with the outbreak of hostilities. Meanwhile, international non-governmental organizations have recognized that human rights violations within their respective areas of concern may occur during armed conflicts, bringing crucial attention and monitoring to these abuses. Thus, serious human rights violations, including arbitrary killings, detention, and ill-treatment, are likely to escalate in times of armed conflict, making the interplay between these two bodies of law more critical than ever.
2.1 Geneva Conventions and Protocols: The Foundation of IHL
The modern architecture of humanitarian law is built upon the Geneva Conventions and their subsequent Protocols.
a. The Four Geneva Conventions (1949)
Following the atrocities of World War II, the Geneva Conventions of 1949 were established to protect those who are not, or are no longer, participating in hostilities, such as civilians, wounded soldiers, and prisoners of war.
Convention I: Protects wounded and sick soldiers on land during war. It also ensures medical personnel and facilities are respected as neutral actors.
Convention II: Extends similar protections to the wounded, sick, and shipwrecked members of armed forces at sea, adapting the principles of the first Convention to maritime warfare.
Convention III: Establishes rights for prisoners of war (POWs). It prohibits torture, humiliating treatment, and ensures humane conditions of detention.
Convention IV: Protects civilians during wartime, including those under occupation. This Convention is a vital shield, as it prohibits mass deportations, hostage-taking, and indiscriminate attacks.
b. The Additional Protocols
Recognizing that the nature of warfare evolves, three additional protocols were adopted to enhance the Geneva Conventions, addressing modern warfare challenges.
Protocol I (1977): Protects civilians from direct attacks in international armed conflicts. It also bans indiscriminate weapons and attacks on civilian infrastructure, such as dams and power plants.
Protocol II (1977): Extends protection to victims of non-international armed conflicts (civil wars), a crucial development given the prevalence of internal conflicts. It bans attacks on civilians, summary executions, and forced displacement within these conflicts.
Protocol III (2005): Introduces the Red Crystal as an additional humanitarian emblem, alongside the Red Cross and Red Crescent, ensuring culturally neutral protection for medical services.
Moreover, the Geneva Conventions are of paramount importance, as they form the foundation of IHL, safeguarding human dignity during armed conflicts. Universally ratified by 196 countries, they provide vital protections for civilians, prisoners of war, and the wounded and sick, ensuring that those not actively participating in hostilities are treated humanely. Beyond offering humanitarian protection, the Conventions also establish accountability, as serious violations are classified as war crimes that can be prosecuted under international criminal law. Their universal acceptance and binding legal force make them a cornerstone of global efforts to limit the brutality of war and protect the most vulnerable.
3. Armed Conflict: The Special Case of Children and Youth
In situations of armed conflict, the protection of children and youth has become a central concern of the international community. For over two decades, the United Nations has taken the lead, with the Special Representative of the Secretary-General for Children and Armed Conflict coordinating efforts across the UN system. The Security Council has also placed the issue firmly on the international peace and security agenda. Similarly, concrete progress has been made, such as the 2010 action plan signed with the Unified Communist Party of Nepal – Maoist, which led to the release of about 2,000 minors. That same year, the Council expressed its readiness to impose targeted measures against persistent violators involved in recruiting, maiming, killing, or sexually abusing children during war.
Despite these initiatives, grave violations continue to affect children and youth in more than twenty war-affected countries today. Young people are often the primary victims, suffering killings, abductions, loss of family members, deprivation of education and healthcare, and long-term psychological trauma. Beyond immediate abuses, they also face the indirect consequences of war, such as poverty, unemployment, weak governance, and the breakdown of communities. To address these challenges, universal ratification of the Optional Protocol on the involvement of children in armed conflict is essential to establish a global moral consensus that no child should be forced into hostilities and that former child soldiers must be supported in rebuilding their lives after enduring violence and exploitation.
4. Strengthening IHL with ICRC: Addressing the Compliance Gap
The ICRC is currently undertaking a major consultation process on how to strengthen legal protection for victims of armed conflict. This involves two tracks of work, one regarding detention in non-international armed conflict and the other on strengthening compliance with IHL generally. For IHL to effectively regulate the behavior of warring parties, there is a need for both adequate rules and actual compliance with those rules. In most scenarios, international humanitarian law sufficiently addresses the humanitarian impact of armed conflict. It is respect for the law that is lacking; contemporary armed conflicts repeatedly demonstrate that the most fundamental and universally acknowledged laws of war are often disregarded, and existing international humanitarian law does not provide an effective mechanism to stop violations when they occur. But in certain areas, the rules themselves need strengthening. Deprivation of liberty in relation to non-international armed conflict is one such area.
To address some of these challenges, the ICRC is currently undertaking a major project on “Strengthening Legal Protection for Victims of Armed Conflict,” while the project focuses on two priority areas:
- Detention track: The protection of persons deprived of their liberty in relation to Non-International Armed Conflict (NIAC). The detention track seeks to identify options for strengthening international humanitarian law regarding the deprivation of liberty of persons in relation to non-international armed conflict. Compared to the detailed body of treaty law regarding detention in relation to international armed conflict, the treaty law regarding detention in relation to non-international armed conflict is very limited.
- Compliance track: Mechanisms for strengthening compliance with international humanitarian law. The compliance track seeks to identify options for improving overall compliance with international humanitarian law by both states and non-state armed groups. Many rules of international humanitarian law continue to be violated daily. International humanitarian law lacks strong and effective mechanisms for monitoring and promoting compliance. As part of this effort, the ICRC and Swiss Government are consulting with states and other relevant actors on how to address the weakness. This diplomatic initiative, which ran from 2015 to 2019, explored creating a formal new forum for states to enhance compliance but concluded without achieving the necessary consensus for its establishment, highlighting the political challenges that persist in strengthening enforcement.
5. Recommendations for Strengthening the Implementation of the Geneva Conventions and Protocols
To ensure better adherence to IHL and enhance the effectiveness of the Geneva Conventions and their Protocols, the following recommendations can be considered:
a. Strengthening Enforcement Mechanisms
- Enhancing Accountability: Given the challenge of non-compliance, it is vital to strengthen the role of the International Criminal Court (ICC) and other tribunals to prosecute war crimes. Encourage universal jurisdiction, allowing national courts to prosecute violations regardless of where they occur.
- Sanctions for Non-Compliance: Impose diplomatic, economic, or military sanctions on states and groups violating IHL. Enforce arms embargoes against perpetrators of war crimes.
b. Improving Awareness and Training
- Military Training & Integration into National Laws: Ensure that armed forces receive mandatory training on Geneva Conventions. Include IHL principles in national military doctrines and rules of engagement to foster a culture of compliance from the command level down.
- Civil Society Engagement: Raise public awareness through educational campaigns and media coverage. Reinforce the role of NGOs, academia, and journalists in monitoring war crimes and advocating for justice.
c. Enhancing Protection for Civilians and Humanitarian Workers
- Expanding Protection in Modern Warfare: Adopt laws to address new threats, such as cyber warfare, autonomous weapons, and terrorism. Strengthen protections against attacks on hospitals, aid workers, and journalists, who are too often caught in the crossfire.
- Humanitarian Access & Aid Coordination: Ensure safe corridors for civilians in conflict zones. Facilitate unrestricted access for Red Cross, Red Crescent, and UN humanitarian missions to deliver essential aid.
d. Encouraging Universal Ratification and Compliance
- Promote State and Non-State Actor Commitment: Convince to those states that have not ratified all protocols to do so. Engage with rebel groups and militias to ensure compliance with humanitarian principles, as they are often key actors in modern conflicts.
- Regular Monitoring and Reporting: Establish independent international bodies to review compliance. Improve reporting mechanisms within the UN and regional organizations to ensure violations are documented and addressed.
e. Addressing Emerging Challenges in Armed Conflict
- Cyber Warfare & Artificial Intelligence (AI): Develop new international laws to regulate cyber-attacks and AI-driven weaponry under IHL, clarifying how principles like distinction and proportionality apply in the digital realm.
- Use of Private Military Contractors: Implement stricter accountability and regulations for mercenary groups and private military firms.
- Climate Change & Conflict: Recognize the role of climate-induced conflicts and integrate environmental protection into IHL policies.
6. Conclusion
The Geneva Conventions remain the cornerstone of humanitarian law, but modern conflicts reveal gaps in enforcement, compliance, and protection of vulnerable populations. By strengthening accountability, ensuring humanitarian access, promoting universal ratification, and addressing emerging threats such as cyber warfare, child recruitment, and private military actors it can uphold human dignity at the highest level. Therefore, effective implementation of IHL and human rights law is both a legal and moral imperative to reduce suffering and protect victims of armed conflicts. Upholding these laws is a continuous struggle, but one that defines our collective commitment to preserving humanity in the face of inhumanity.
Author Name- Diwakar Dhakal, Final Year Law Student, Kathmandu School of law, Nepal
