Humanitarian Law in the Context of War: Sources and Key Regulations

13 September 2023

The concept of ‘war’ comprises a complex picture of conflicts that spread far beyond the battlefield, involving civilians and often spilling over into the internal areas of states. In this complicated and painful landscape, humanitarian law serves as a key mechanism for protecting the most vulnerable: the civilian population and those who risk themselves to help.

The task of humanitarian law is not to prevent conflicts – that is the domain of diplomacy. Its mission, however, is to minimize human suffering when conflicts do occur. It provides a legal framework that aims to protect and preserve human dignity even under drastic conditions, and to hold accountable those who violate it.

In this article, we will focus on how humanitarian law protects the life and dignity of the civilian population. We will describe the most important rights and obligations of the warring parties towards the population and the basic threats to which it is exposed.

Worth to know: You might wonder why the provisions of humanitarian law are formulated in such a general way. This is because, as international conventions, its principles must be flexible to be effectively applied in diverse legal and social contexts. Each state interprets and applies them individually to achieve a common, humanitarian goal.

Źródła prawa humanitarnego

The inspiration for the establishment of the International Committee of the Red Cross was the reaction of the Swiss merchant, Henry Dunant, to the tragedy of the Battle of Solferino. He proposed the creation of universal aid associations, marked with a red cross on a white background as a symbol of neutrality.

The most well-known definition of humanitarian law was presented by the International Committee of the Red Cross. One of the most important humanitarian entities in the world defined it as:

International norms established by international agreements or international custom, whose particular task is to resolve humanitarian problems arising directly from international or non-international armed conflicts […], protect people and property that are or may be affected by the consequences of armed conflict.

Humanitarian provisions can arise from bilateral or multilateral agreements between states. However, as of today, the most humanitarian law provisions on European grounds can be found in the following legal acts:

  • The Hague Conventions of 1899 and 1907,
  • The Geneva Conventions of 1949,
  • Additional Protocols to the Geneva Conventions (AP I and AP II) of 1977.

In the legal documents discussed, there are no specific penalties for the described offenses. Therefore, states that sign these agreements must independently establish appropriate sanctions. In Poland, for example, the Penal Code specifies penalties for crimes against peace and humanity, as well as war crimes.

In humanitarian law, civilians are persons not engaged in hostilities. However, if they choose to participate in combat, they can become a legitimate target of attacks. In case of doubt, a soldier must assume that they are dealing with a civilian. The presence of a few combatants does not change the status of the entire group to non-civilian.

Legislation on the Protection of Civilian Populations

Humanitarian law provides for two situations in which civilian populations are entitled to protection:

  • When the population may suffer as a result of an attack due to direct actions.

This means that attackers must discern who is civilian and who is not. Strikes may be directed only at military targets, such as command headquarters, and not at civilian objectives, such as hospitals or kindergartens. During military operations, parties are obliged to minimize accidental casualties among the civilian population. Even if the target is military, the principles of protecting those not participating in the conflict apply. Humanitarian law prohibits actions without proper distinction and requires attackers to warn the civilian population in the vicinity of a planned strike.

  • When under the control of the enemy, for example, as a result of occupation

Civilians are legally guaranteed protection of life and health. Therefore, any attacks on their life and well-being, such as murder or torture, are absolutely prohibited. They also cannot be deported or transferred from occupied territory to the occupying country or another state. Evacuation is allowed only within the same territory and only for safety reasons.

Civilians have the right to contact with family and to search for relatives, and these activities cannot be hindered. They also have the right to receive parcels with medicines, hygiene items, religious objects, and necessary food.

Special Protection for Women and Children

International humanitarian law provides additional protection for particularly vulnerable groups of civilians, such as women and children. For women, this includes special protection against forms of violence, including rape and forced prostitution. Women detained in conflict should be held separately from men and supervised by women. Pregnant persons or those caring for young children are also entitled to special treatment.

W niektórych regionach, takich jak Pakistan i Afganistan, kobiety doświadczające przemocy seksualnej mogą dodatkowo być narażone na tragiczne praktyki związane z tak zwanym „zabójstwem honorowym” czy „oczyszczaniem honoru rodziny”. Jak zauważył Specjalny Sprawozdawca ds. pozasądowych, doraźnych i arbitralnych egzekucji Philip Alston monitoring takich przypadków pozostaje niestety niewystarczający. Nie tylko w tych krajach, ale globalnie, kobiety padające ofiarami przemocy seksualnej mogą również doświadczać kolejnych straszliwych konsekwencji. Mogą to być m.in. poważne zagrożenia dla ich życia i zdrowia, w tym związane z poniesionymi ranami lub chorobami przenoszonymi drogą płciową, niewolnictwo seksualne czy śmierć zadana przez sprawcę.

Source: J. Dobrowolska-Polak, Ludzie w cieniu wojny. Ludność cywilna podczas współczesnych konfliktów zbrojnych, Instytut Zachodni, 2017, pp. 127–129.

In some environments, women who have gone through the trauma of sexual violence related to conflict may encounter additional painful consequences. They can be inappropriately stigmatized, which can lead to their social exclusion. In communities with distinctly patriarchal traditions, such stigmatization can even hinder marriage. Such practices create further risk to the safety and well-being of those affected by violence.

Children also have the right to special protection in conflicts. Parties are obligated not to engage persons under the age of 15 in armed actions. If children are nevertheless entangled in conflict, they have the right to additional protection, even if they are not formally treated as prisoners of war.

In the case of detaining children, it is recommended to place them in a separate, safe environment, preferably with siblings or parents, rather than with unrelated adults. Their transfer to other countries should be the last option, considered only when it is absolutely necessary for their safety or health. In the event of evacuation, the priority is to ensure the continuation of education and the issuance of identifiers, which, in addition to basic data and photographs, also contain medical information and contact details of the closest family.

The state controlling the area where children are present has an ethical and legal obligation to determine, secure, and protect their identity. Adoption of these children without the consent of their family or their engagement in any activities by the occupier is unacceptable. In situations where children are orphaned or separated from their parents, the best solution is for them to be cared for by persons from the community who speak their language and share the same culture or religious beliefs.

According to the 2005 report of the United Nations Secretary-General* on children and armed conflict, the youngest are particularly vulnerable to six major threats. They include:

  • risk of loss of life or injury,
  • recruitment of children as soldiers,
  • attacks on schools and hospitals,
  • experiencing sexual violence, including rape,
  • risk of abduction,
  • restricted access to humanitarian aid.

*Children and armed confict. Report of the Secretary-General, Feb 9, 2005, UN Doc. A/59/695 – S/2005/72, p. 16.

Further Reading

Understanding humanitarian law is undoubtedly a complex task. In this article, we have only managed to outline the basics. If you are interested in a deeper understanding of the topic, we recommend the following additional sources for further reading [in Polish]: