The contemporary era has made conflict an international priority, a world phenomenon, and a global concern for the welfare of all states. Ostensibly, war has existed for quite some time, and the current global hegemony has not conclusively provoked further conflict, but rather, developed mechanisms to protect those affected by the circumstances of an armed conflict. International Humanitarian Law (IHL) was devised by the Geneva Conventions, a paramount composition of accords that followed the Second World War in a historical juncture that would persuade political powers of the world that it was necessary to establish a customary structure to the time of war. Predominantly, the conditions of the non-militants, or civilians, as well as the conditions of the militants involved in the war. IHL would essentially establish normative humanitarian standards among enemies concurrent with an armed conflict.1
The Geneva Conventions, alongside the Universal Declaration of Human Rights (UDHR), and the Hague Conventions of 1899 and 1907, delineate IHL, and in some context, International Human Rights Law (IHRL). This analysis will concentrate itself primordially on the Genova Contentions. Likewise, there are four conventions, and three additional protocols, being; the First Geneva Convention, for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), the Second Geneva Convention, for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), the Third Geneva Convention, relative to the Treatment of Prisoners of War (1949), the Fourth Geneva Convention, relative to the Protection of Civilian Persons in Time of War (1949), Protocol I additional to the Geneva Conventions, relating to the Protection of Victims of International Armed Conflicts (1977), Protocol II additional to the Geneva Conventions, relating to the Protection of Victims of Non-International Armed Conflicts (1977), and Protocol III additional to the Geneva Conventions, relating to the Adoption of an Additional Distinctive Emblem (2005).2
The Geneva Conventions, and correspondingly IHL, are an ideal for which humanity desires intensely, despite, its conceptual flaws. Throughout the existence of IHL, and IHRL, it has been ambiguously defined, and moreover, the responsibility of applying it, has been dubious, as international tribunals, such as the United Nations’ (UN) International Court of Justice (ICJ), and the International Criminal Court (ICC), have encountered significant international pressure for its conduct, and threat to national sovereignty. Despite the coherent accountability to protect civilians, militants, and otherwise humanitarian workers, the responsibility is frequently absent, as it is unclear as to who is responsible for applying it, or whether there are sufficient means to apply it. The recent humanitarian crisis in Darfur, Sudan, is evidence to the previous, as IHL failed to protect innocent civilians from an armed conflict, and inherent humanitarian failures. Ultimately, IHL failed as a result of coercion from the Sudanese government, after an indictment by the ICC against their President, Omar al-Hassan Bashir. Thereafter, the responsibility and burden of applying IHL, and IHRL, were obscure, as political activists demanded an international intervention, whereas, nationals appealed the governments discontent with their exclusion of non-governmental organizations (NGO).
Conflict is inevitable, and armed conflicts ultimately submits a state to endure a series of atrocious conditions, making parity inconceivable. Nonetheless, the international community continues to insist on the application of IHL, and IHRL, in nearly all conflicts. Whereas, the notion of equity is superb, its application can be calamitous, as was the case in Darfur.
Subsequently, this analysis will pursue the appropriate rendition of IHL, and IHRL, while justifying that it’s current structure is not sufficiently adequate to consummate the global application, and thereupon, conclude that the ambiguous responsibility of applying it, has led to other conflicts. Should the application of IHL, and IHRL, assume an adequate structure in the future, its uncontested use may prevail, however, in the current order, it is most imperative for conflicts to be evaluated individually. Whereas, the crisis in Darfur, the application of IHL, and IHRL, has disdained the rights of civilians, and militants amidst an armed conflict, it is thus competent to assume that IHL would not facilitate the compliance of basic human rights during the armed conflict in Darfur, as there is not a sufficient framework of responsibility and accountability to institute and sustain the arrangement.
Despite the considerable misstep, IHL, and IHRL, has had on the conflict, it has nevertheless successfully helped a fragmentation of Darfuris. The conflict is seemingly one of the most complex humanitarian conflicts, as many have found themselves to be reliant on the aid provided by NGO’s. In 2013, nearly three million people will have received humanitarian assistance, as organizations continue their plight to improve access to water, and provide basic health care, the latter being affirmed in article 56 of the Fourth Geneva Convention (1949). Likewise, organizations have successfully asserted the premise of the Third Geneva Convention (1949), on its relativity to prisoners of wars, as "[…] a total of 35 civilians and 27 Sudanese armed forces personnel held by armed opposition groups in Darfur were transferred home"3, in 2013. The premise of IHL has unilaterally been applied in Darfur, as organizations have substantially ameliorated the conditions of life of thousands of Darfuri’s, however, serious violations of an individuals basic human rights have continued in the region. For the use of this analysis, basic human rights, will be considered as
"everyone has the right to life, liberty and security of person, […] no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, […and] everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services […]".4 (Article 3, Article 5, and Article 25, of the UDHR)
These violations have continued widespread across Darfur, and adduces the question, whether IHL can be applied throughout, or whether its success is relative to its minimal application. It would be seemingly difficult to exhaust IHL, and IHRL, throughout the region as there isn’t a method of colossal application, and the responsibility of the action remains ambiguous. Likewise, it is imperative to highlight these basic human rights as minimal rights of protection towards all individuals, whether civilian, militant, refugee, or prisoner of war all individuals are subject to the same IHL.5
The controversial debate of the responsibility to protect (R2P) has examined whether it is the responsibility of an individual or a state afar to intervene in order to protect the aforementioned basic human rights, and professedly, scholars have divided themselves on the appropriate action. If it is assumed that R2P is given to the structures of international justice, such as the ICJ, and ICC, as many have implied, including the UN, then the responsibility"[…] to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity"6, has been disposed to a third-party capable of overseeing the vast responsibility of maintaining international peace, and security. The prior are principles conveyed by the United Nations Security Council (UNSC), a crucial committee that oversees international security, and to some extent international justice, although ceding this authority to the ICC.
The debate surrounding R2P is imperative to the analysis of whether the imposition of IHL, and IHRL, would in fact diminish the violations of basic human rights in Darfur. Moreover, there is an association with the will to intervene or the compliance of the intrusion on the States sovereignty, and the success of an action relative to IHL.
As antecedently eluded, the imposition of IHL has achieved moderate success in Darfur after the UNSC’s resolution 1706, in 2006, to broaden the previous humanitarian mission in Sudan, or the United Nations Advanced Mission in Sudan (UNAMIS), to "[…] promote and monitor human rights in Darfur, as well as to coordinate international efforts towards the protection of civilians with particular attention to vulnerable groups including internally displaced persons, returning refugees, and women and children."7. It wouldn’t be long until the UNSC would realize that the extensive mandate of UNAMIS would require a considerable amendment to its mandate, and ample resource revisions. In 2007, UNAMIS was bolstered with the African Union – United Nations Hybrid Operation in Darfur (UNAMID), a mission that would ensure the protection of civilians, particularly vulnerable groups as antecedently exposed, and would reiterate "[…] its deep concern for the security of humanitarian aid workers and their access to populations in need, condemning those parties to the conflict who have failed to ensure the full, safe and unhindered access of relief personnel to all those in need in Darfur […]."8 Nevertheless, attacks and insecurity would continue, as in 2013 the UNSC would strongly condemn the attacks on UNAMID, in which "[…] 7 peacekeepers were killed and 17 peacekeepers and police were injured.."9 Attacks in Darfur have substantially worsened throughout the past five years, as rebels attack humanitarian infrastructures in order to diminish the aid provided to certain rival groups, or often to provide more resources to their own camps. The deficiency of resources have led many groups to rebel against the very institutions that are meant to protect them. Since 2007, 124 peacekeepers, 39 police, 1 military observer, 2 international civilians, and 14 peacekeeping civilians have been killed during the UNAMID mission, for a total of 181 fatalities.10 Ostensibly, these statistics have been one of the primary reasons for the limited aid provided in recent years, and organizations have refused, or have not been allowed, to provide their assistance in certain regions of Darfur.
To this point it has seemingly been proposed that IHL would not work on a larger scale in Darfur, due to outstanding deficiencies in the current structure, principally it’s absence of accountability and responsibility, by means of international justice and R2P, but also, the concern of insecurity towards humanitarian workers in Darfur. Correspondingly to the structure of IHL, the relationship between IHL and IHRL has continued to disconcert scholars, as most recently the ICJ declared that IHL would have a lex specialis over IHRL, a notion that unsettles the relationship between both as many elements of IHL are inadequately explained. Françoise Hampson suggests in an article that "under the foregoing hypothesis a killing would be an arbitrary killing under human rights law only if it violated the IHL rules."11 Otherwise explained as, a State’s oppression or aggressiveness, resulting in a murder would only be condemned internationally if the aggression was in breech of IHL rules. Seemingly, the ambiguity of the ICJ’s remarks have enlightened supplementary concerns to the relationship between notions.
The purpose of IHL, contrary to IHRL, is to refrain the use of an excessive corollary effect of an armed conflict towards militants and non-militants. This is adverse to jus ad bellum, or the prevention of conflict, and means of justification. Accordingly, the analysis will not explore whether the means of international justice is an appropriate method to cease a conflict, alternatively subjecting whether the ICC’s indictment has led to the conduct, and circumstances, surrounding humanitarian workers in Darfur. Similarly to the clarification between IHL, and IHRL, humanitarian intervention (HI) "[…] differs from humanitarian aid (HA) in that the former may incorporate the threat or use of force in the process of responding to complex humanitarian emergencies."12 Likewise, the differentiation can be interpreted as HI customarily initiated by the UNSC, whereas, HA is usually carried out by NGO’s. This analysis has thus far pertained to IHL, a notion that englobes both HL, and HA, two distinct branches that have achieved relative success in Darfur amidst the sequence of hardships. Additionally to the presence of IHL in Sudan, IHRL, has posed hardships to IHL in the region, as the ICC’s indictment of Bashir has triggered "[…] anger from Sudan, and opposition from other African and Arab countries, […as they believe] that the warrant will destabilize the whole region […]."13 An affirmation that was demonstrated in Sudan by the subsequent banishment of HA NGO’s, which Bashir claimed had divulged inaccurate information of the armed conflict. Nonetheless, prior to
"[…] the expulsions Darfur had been described as one of the most difficult and frustrating places to work in the world, with humanitarian access severely curtailed by general insecurity, targeted attacks on humanitarian personnel and their assets, and the harassment of (and bureaucratic restrictions imposed upon) humanitarian organizations and their staff."14
The prior demonstrates the hardships that humanitarian workers have endured in Darfur throughout the past decade as the government continues to banish organizations, while rebels persist their offensive campaign against the same humanitarian workers.
Seemingly, Darfur has been a battleground for decades and the most recent conflict has only featured certain contentions the country has faced recently, additionally, exposing countless structural difficulties in the system of international justice, and IHL. The analysis furthermore supposes that the current framework of IHL does not sufficiently categorize individuals in non-international conflicts, as there is not a status of combatant, which makes it difficult to differentiate inoffensive members of armed groups in the scheme of IHL.15
Ultimately, it would be advantageous for IHL, and IHRL, to step aside amidst a conflict to allow a proper ceasefire, and structural HA. Posteriorly, the judicial approach could be undertaken once the conflict has reached a peace resolution. Otherwise, the scheme of conflict resolution would be best advised to coordinate itself into an arrangement of political realism.