1.1 HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW
“Humanitarian law is a branch of public international law which owes its inspiration to a feeling for humanity and which is centred on the protection of the individual”
This quotation from a work by Mr. Jean Pictet defines the scope of this law, the purpose of which is to “alleviate the sufferings, of all the victims of armed conflicts who are in the power of their enemy
whether wounded, sick or shipwrecked prisoners of war or civilian”Prior to the middle of the 19th Century, agreements to protect victims of wars were of mere transient character, binding only upon
the contracting parties thereto, and based upon strict reciprocity. In reality, they constituted purely military agreements usually effective only for the duration of a particular period of hostility. This
state of affairs was changed by the birth of modern humanitarian law which is associated with the emergence of the Red cross movement. This development makes states bound by universal treaty applicable at all times and in all circumstances.
The history of mankind is the story of power struggles, confrontations and armed conflicts between nations, people and individuals.
From earliest times, men have been preoccupied with the problem of how to control the effect of violence and its attendant human sufferings with varying degrees of success.
It would therefore be misleading to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the beginning of international humanitarian law as we
know it today. Just as there is no society of any sort that does not have its own set of rules, there has never been a war that did not have some vague or precise rules covering the outbreak, end of
hostilities, and how they are conducted. As Quincy Wright rightly observed that “Taken as a whole, the war practices of primitive people illustrate various types of international rules of war known at
the present time; rules determining the circumstance formalities and authority for beginning and ending war; rules describing limitation of persons, time, place and methods of it conducts, and even rules
outlawing war altogether.
The first laws of wars were proclaimed by major civilization several millennia before our era: “I establish these law to prevent the strong from oppressing the weak” .
Many ancient texts such as Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the viqayet, a text written toward the end of the 13th century at the height of the period in which the Arabs ruled Spain, contains a veritable code for warfare. The 1864 convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered law and customs of war protecting the……………..
1.2 OBJECTIVES AND SCOPE OF THE RESEARCH
Taking into cognizance the fact that international humanitarian law does not claim that it can put an end to the scourge of war, but aims at attenuating the unnecessary harshness of armed conflicts, and that the reciprocal interest of the belligerents should compel them to observe certain “rules of the game” in the conduct of hostilities. It is therefore necessary to determine from the onset the objective of the research. The main thrust of the research is to undertake a discourse of the origin, nature and the scope of international humanitarian law albeit in brief with a view to determining whether the High Contracting Parties to the four
Geneva Conventions and the two additional Protocols are keeping faith with their obligation, to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, or to have ordered to have committed, such grave breaches, and shall bring such persons, regardless of their nationality before its own courts.
Another important aim of the research, is to identify crimes breaches under international humanitarian law. The emotional and psychological trauma of displaced persons and refugees, the torture, cruel and inhuman treatment meted out to prisoners of war and other grave breaches of international humanitarian law necessitate that effective penal sanctions should be meted to those persons committing or ordering to be committed such grave breaches of international humanitarian law. It is absolutely imperative to consider the enforcement machinery put in place both nationally and internationally under IHL to arraign, prosecute and punish those who violate the provisions of the Geneva Conventions and the Protocols.
Finally to determine the efficacy or otherwise of the sanctions and the enforcement machinery in bringing compliance with the rules of the game during armed conflicts.