International Humanitarian Law

Modern Developments in the Limitation of Warfare

Hilaire McCoubrey

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429514609
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

First Published in 1998, this book presents an analysis of international humanitarian law, the law governing and seeking to mitigate the conduct of armed conflict. Since the first edition of this work came out in 1990 there have been important developments in the law and, sadly, a continuing experience of armed conflict and the humanitarian crises which it represents. As a result, this is not so much an 'updating' as the offering of a new book. International humanitarian law is here taken as coterminous with the jus in bello and covers both its 'Geneva' and 'Hague' elements dealing, respectively with the humanitarian protection and assistance of victims of armed conflict and the controls and restrictions placed upon methods and means of warfare. The rules and principles of international humanitarian law are presented and analysed in the context of their practical application in warfare, with emphasis upon recent experience. The Work is Primarily dedicated to the law relating to international armed conflict but also includes discussion of the relevant law applicable to non-international and 'low level' conflict.

1 Humanitarianism in the Laws of Armed Conflict

International Humanitarian Law and the Laws of Armed Conflict

International humanitarian law is, broadly, that branch of public international law which seeks to moderate the conduct of armed conflict and to mitigate the suffering which it causes. It is founded upon ideas which, in their present forms, trace their origins to the mid-19th century: that methods and means of warfare are subject to clear legal and ethical limitation, and that the victims of armed conflict - meaning non-combatant civilians and all personnel who have been rendered hors de combat by injury, sickness, shipwreck (including ditching from aircraft) or capture - are entitled to humanitarian care and protection. This is one of two principal divisions of the international laws of armed conflict, and is correctly termed the jus in bello ('the law in war'). The other principal division is the jus ad bellum ('the law to war') or, as some now more accurately prefer, the jus contra bellum ('the law against war').¹

The aim of the jus ad bellum is to avert and restrain resort to armed force in the conduct of international relations. This law assumed its modern shape in the years following the First World War, to some extent with articles 12, 13, 15 and 16 of the Covenant of the former League of Nations, but more significantly with the 1928 Pact of Paris, by which armed force was banned as a lawful means of international dispute-resolution. This position is now affirmed by article 2(3)(4) and Chapter VII, articles 39-51, of the United Nations Charter. It follows from these provisions that armed conflict is no longer a lawful condition of international relations, because, other than in the most bizarrely unlikely circumstances of mutual error, it can only result from unlawful action by at least one of the parties. Legitimate use of armed force in international relations is now limited to the exercise of the 'inherent' right of individual and collective self-defence by states in the event of armed attack, which is preserved by article 51 of the UN Charter, and action for the maintenance or restoration of international peace and security authorised by the UN Security Council.² The jus ad bellum is thus vested with the primary function of averting or terminating armed conflict and threats to the peace. Where that primary endeavour fails, the jus in bello is vested with the secondary, but vital, office of mitigating the impact and consequences of those armed conflicts which occur despite the jus ad bellum.

The jus ad bellum and jus in bello are to be considered quite distinct prescriptions. Certainly, the lawfulness or otherwise of a given party's original involvement in a conflict cannot negate the application of jus in bello norms: if that were the case, it would represent a renaissance of the very worst features of medieval 'just war' theory.³ It is possible for jus ad bellum constraints to impose restrictions upon the scope of military action in addition to those inherent in jus in bello norms in a particular case, but this is an occasional and tangential effect.

The jus in bello itself has two principal subdivisions, which have conventionally been categorised as 'Geneva' and 'Hague' law, in recognition of the principal treaty series upon which each is founded. 'Geneva' law now rests primarily upon the four 1949 Geneva Conventions and the two 1977 Additional Protocols thereto. It is specifically concerned with the protection of the victims of armed conflict. 'Hague' law, so named in reference to the 1899 and 1907 Hague Conventions, is concerned with methods and means of warfare, including controls on weapons types and usage, and on tactics and the general conduct of hostilities.

The division between the 'Geneva' and 'Hague' sectors of the jus in bello has long been highly artificial from a number of points of view. Fundamentally, both sectors are based upon a humanitarian concern for the moderation and mitigation of warfare and its consequences, and for this reason there is a very large degree of overlap between the two: provisions of treaties arising in the one deal with matters which prima facie pertain to the other. Historically, the term 'international humanitarian law' was used to refer specifically to the 'Geneva' sector of the jus in bello, but this is now seen as an outdated and unhelpful usage. In modern usage, therefore, 'international humanitarian law' is taken to comprise the whole jus in bello in both its 'Geneva' and 'Hague' dimensions, and the term is used in this way in this book.

The Paradox of Humanitarianism in Armed Conflict

Beyond the questions of categorisation in the laws of armed conflict, there is a seeming paradox which must be considered in the very existence of laws, and certainly 'humanitarian' laws, of armed conflict. Sir Hersch Lauterpacht remarked pointedly:

if international law is ... the vanishing point of law, the law of war is even more conspicuously the vanishing point of international law.⁴

Armed conflict is indeed the ultimate challenge to international legal order: not only is legal regulation stretched to the limits of its capacity, but the very existence of armed conflict is a defiance of that regulation. It might therefore seem odd to find a structure of legal norms designed to regulate the conduct of states in a condition of international relations which is essentially a descent into extra-legal violence. There is no direct equivalent in municipal law regulating, for example, the 'proper' conduct of an inter-personal assault, although there are admittedly norms addressing the level and forms of permissible self-defensive response at given levels of attack. There is a related argument that armed conflict, as an act of violence, is inherently not open to moderating regulation, and that efforts to establish such norms actually 'encourage' war by making it more 'acceptable'. Both of these superficially strong arguments against humanitarian laws of armed conflict may readily be countered.

The basic paradox was well stated by the great 19th-century Prussian military theorist Carl von Clausewitz in Vom Kriege (On War') in remarking:

If wars between civilized nations are far less cruel and destructive than wars between savages, the reason lies in the social conditions of the states themselves and in their relationships to one another. These are the forces that give rise to war; the same forces circumscribe and moderate it. They themselves however are not part of war; they already exist before fighting starts. To introduce the principle of moderation into the theory of war itself would always lead to logical absurdity.⁵

The anthropological assumptions made by von Clausewitz must, in the light of the 20th-century experience of 'total war', be considered more than questionable, but the basic paradox remains genuine enough. Their resolution is set out clearly in Clausewitz's statement, however. Even though the violence of armed conflict may not in itself be logically capable of regulation to moderate it, in reality such conflicts occur in cultural and political contexts which set limits, both immediately and prospectively, to what may be tolerated even in the extreme exigencies of combat. Such influences are, as von Clausewitz remarked, 'given conditions', but they do set parameters within which limits to the permissible modes of use of armed force will be set.

The second criticism, that humanitarian rules actually encourage wars, is implicit in the views of the novelist Leo Tolstoy, for example, who was a committed pacifist. In War and Peace, referring to the guerrilla resistance warfare which followed Napoleon's occupation of Moscow in 1812, Tolstoy wrote:

From the time [Napoleon] ... took up the correct fencing attitude in Moscow and instead of his opponent's rapier saw a cudgel raised above his head, he did not cease to complain to Kutuzov and to the Emperor Alexander that the war was being carried on contrary to all the rules, as if there were any rules for killing people.⁶

This view - which is advanced in rather different forms by strategic 'realists' and by pacifists - again has a superficial force, but has a major flaw: unlimited brutality does not win wars; nor does the inherent cruelty of war serve as a means by which it will necessarily be ended. If the latter argument were correct - if war is not moderated, its very cruelty will rapidly bring it to an end - it is difficult to imagine how war could have been contemplated after the Somme campaign in the First World War, for example. The sad answer to this is that wars are rarely, if ever, started by those who have to fight in them or otherwise become their victims. To deny humanitarian mitigation to those who do find themselves caught up in armed conflict upon such a basis would be a cruel logic indeed. In the real world, it may be agreed that, as Schwarzenberger states:

it is the function of the rules of warfare to impose some limits, however ineffective, to a complete reversion to anarchy by the establishment of minimum standards on the conduct of war.⁷

The avoidance of war is, as has been indicated above, the business of the jus ad bellum; the mitigation of its consequences where armed conflict non the less occurs does not impede that objective, and is, in its own sphere, a vital function.

Beyond this, mere are obvious questions to be asked about the pragmatic effectiveness of legal limitations on the conduct of warfare, not least because the logic of violence does appear to suggest an inevitable escalation of extremities in the conduct of hostile operations. Such simple reasoning is misleading, however, and, in practice, principles of moderation have considerable moral and pragmatic force. The moral claim of moderation in armed conflict should be obvious, and rests ultimately upon the nature of human beings as social creatures, in the sense understood by Aristotle,⁸ to whom a relationship of violent confrontation is not 'natural', but a divergence from a more co-operative norm of existence. The pragmatic considerations are, if anything, even more powerful. In the medium to long term, armed conflicts are, if only by reason of exhaustion, essentially temporary phenomena, after which some semblance of normal relations must be resumed by the parties.

Even during the armed conflict itself, there is a strong element of pragmatic benefit to be found in the implementation of humanitarian norms. A party to armed conflict who casts off significant legal constraints runs the risk of acquiring a 'pariah' status in the view of nations, which may compromise neutral political support even from states which might otherwise be disposed to be friendly. The record of Iraq in the 1980-88 Gulf War, including the use of chemical weapons, and in the subsequent 1990-91 Gulf Conflict inflicted much damage upon Iraqi international relations, and played a role in the near-unanimous opposition to Iraq in the latter conflict. Quite apart from this, an enemy who anticipates barbarous treatment upon capture or surrender may be driven into desperate resistance even when the conflict is clearly lost, whereas expectation of correct treatment might have counselled against this.

After the conflict, the greater the degree of cruelty shown in the conduct of operations, the more difficult the inevitably problematic processes of normalisation of relations will be. Even in such a 'textbook' armed conflict as the 1982 Falklands Conflict, in which both the British and Argentine forces generally conducted themselves correctly,⁹ there was ...