The Law in War

A Concise Overview

Geoffrey S. Corn, Ken Watkin, Jamie Williamson

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317436201
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This book provides a comprehensive yet concise overview of key issues related to the regulation of armed hostilities between States, and between States and non-State groups.

Coverage begins with an explanation of the conditions that result in the applicability of international humanitarian law, and then subsequently addresses how the law influences a broad range of operational, humanitarian, and accountability issues that arise during military operations.

Each chapter provides a clear and comprehensive explanation of humanitarian law, focusing especially on how it impacts operations. The chapters also highlight both contemporary controversies in the field and potentially emerging norms of the law.

The book is an ideal text for students studying international humanitarian law for the first time, as well as an excellent introduction for students and practitioners of public international law and international relations.

1
International humanitarian law application

1 Introduction

Understanding how international humanitarian law (IHL) regulates hostilities begins with assessing the conditions that bring this body of international law into force. Unlike most areas of domestic law, IHL is not constantly in force. IHL only applies when there is an armed conflict in existence.¹ The existence of an armed conflict is dependent upon certain conditions being satisfied—conditions that indicate a need for the regulatory effect of this law—that it will become obligatory on those engaged in hostilities, and to a lesser extent even neutral States.

2 Origins of the conflict classification paradigm

Prior to 1949, the laws and customs of war, in the form of both treaty obligations and customary international law, applied during war. War, in turn, was understood not in the pragmatic sense of hostilities between organized armed enemies but instead in the legal sense. Following World War II, this legally technical condition precedent to the applicability of the laws of war was identified as undermining the humanitarian objectives of the law. States engaged in hostilities that undoubtedly necessitated the regulatory benefit of the law could hide behind these technicalities to avoid the law and expand their zone of operational impunity.

The response to this impediment was a central focus during the two-year process of revising the 1929 Geneva Conventions. The drafters of these IHL treaties were determined to link application of these humanitarian protection treaties to situations of de facto hostilities and decouple application from formalistic legal concepts. Accordingly, each of the four treaties that emerged from the revision effort—the four Geneva Conventions of 1949—included two Common Articles dictating treaty application. Armed conflict, and not war, became the focal point for this applicability. Common Article 2 of the treaties addressed situations of inter-State hostilities, indicating that each treaty applied to all cases of declared war, belligerent occupation, or any other armed conflict between contracting parties, or States—so-called international armed conflicts (IACs). The effort to link applicability of humanitarian regulation to de facto hostilities did not end there. Instead, in an even more progressive development, Common Article 3 of each treaty extended basic humanitarian protection to armed conflict not of an international character, in other words hostilities between States and non-State groups—so-called non-international armed conflicts (NIACs). Subsequent treaties, such as the 1977 Protocols Additional to the 1949 Geneva Conventions also contain provisions that help identify the scope and nature of an armed conflict.

2.1 The triggers—Common Articles 2 and 3

The significance of the law-triggering threshold established by these two treaty provisions has evolved substantially since 1949. At that time, they only impacted the applicability of the Geneva Conventions. Today, however, they are recognized as establishing the triggering standard for IHL at large, to include not only the Geneva Conventions, but other provisions of treaty and customary IHL.

As noted above, Common Article 2 addressed situations of formal and de facto inter-State hostilities,² providing that:

The present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.³

Like all other Geneva Convention Articles, the Commentary to the treaties prepared by the International Committee of the Red Cross provides important insight into the intended meaning and effect of Common Article 2. Specifically, the Commentary confirms that the inclusion of both a de jure and de facto law trigger was adopted to foreclose law avoidance at the peril of those most in need of humanitarian protection:

Article 2(1) encompasses the concepts of “declared war” and “armed conflict”. Both trigger the application of the Geneva Conventions but cover different legal realities, the latter being more flexible and objective than the former. However, they are complementary, may even overlap, and cover a larger spectrum of belligerent relationships than was the case in the law prior to the 1949 Geneva Conventions.

The rationale of Article 2(1) is to extend the scope of application of the Geneva Conventions so that their provisions come into force even when hostilities between States do not result from a formal declaration of war. In this way, Article 2(1) serves the humanitarian purpose of the Geneva Conventions by minimizing the possibility for States to evade their obligations under humanitarian law simply by not declaring war or refusing to acknowledge the existence of an armed conflict.⁴

The Commentary also indicates that, consistent with the humanitarian objective of the treaties, even hostilities of short duration, limited geographic scope, or limited intensity trigger the law:

For international armed conflict, there is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an armed conflict exists. Article 2(1) itself contains no mention of any threshold for the intensity or duration of hostilities. Indeed, in the frequently cited 1958 commentary on common Article 2, Pictet stated:

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims.⁵

As noted above, the Conventions did not restrict application of humanitarian protections to inter-State hostilities. Instead, they expanded the scope of IHL coverage to the realm of what was characterized as armed conflicts not of an international character. While the prevalence of this type of conflict since 1949 may suggest this was unremarkable, at that time it was anything but. While pressed by advocates of humanitarian protection based on the sheer logic that the nature of the parties to an armed conflict in no way impacts the necessity of conflict regulation, States perceived this extension as a serious intrusion into their sphere of sovereign prerogative, and resisted proposals to make the law applicable to these conflicts co-extensive with the law applicable to IACs.

The compromise that emerged took the form of Common Article 3. Like Common Article 2, it established the trigger for the much more limited humanitarian regulation extended to this type of armed conflict. These regulations were included within Common Article 3 itself, which explains why it was referred to as a “Convention in miniature.”⁶ According to the Article, this limited regulation applies “[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”⁷

Ultimately, Common Articles 2 and 3 evolved to function as triggering conduits for assessing the applicability of the law governing these two categories of armed conflicts, meaning all applicable IHL treaty provisions and applicable IHL customary international law. Common Article 3 indicates situations that require application of the Article’s substantive obligation to provide humane treatment to any individual not actively participating in hostilities,⁸ and other customary IHL obligations now applicable to NIACs. In contrast, Common Article 2 indicates when the substantive rules contained in all the other Articles of the Geneva Conventions become applicable,⁹ as well as other treaty and customary IHL obligations applicable to IACs. Accordingly, contemporary IHL application is contingent on two essential factors: first, the existence of armed conflict; second, the nature of the armed conflict.¹⁰

2.2 The existence of an armed conflict

Armed conflict is the common requirement for both Common Articles 2 and 3. The term armed conflict was not, however, defined in the Conventions, although the ICRC Commentary is considered instructive on the meaning of this term. Based on the Commentary and the pragmatic purpose of Articles 2 and 3, assessing the existence of armed conflict involves consideration of a range of factors, with no single factor playing a dispositive role. These factors should be assessed on a case-by-case basis in order to link law applicability with de facto reality.¹¹

With respect to IAC, neither motive for nor characterization of disputes between two States should influence the assessment of armed conflict, so long as the underlying use of military force is in response to an inter-State dispute. And, in practice, the dispute element itself may be inferred from the break out of hostilities between the armed forces of two States. This may, however, justify denying an armed conflict characterization for an inadvertent crossborder incursion by armed forces into the territory of another State, so long as the incursion does not result in actual hostilities. But where even an inadvertent incursion results in actual hostilities between armed forces, an armed conflict occurs. For example, the United States asserted the existence of an armed conflict after four U.S. soldiers serving as part of a United Nations peacekeeping mission in Macedonia were placed under fire and captured by Serbian forces after allegedly crossing the border into Serbia without authority.¹²

The Commentary to Article 2 indicates that an armed conflict exists whenever two or more States resort to the use of military forces in response to a dispute between them. Even confrontations of short duration or minimal intensity qualify as such, a point emphasized above from the ICRC Commentary:

For international armed conflict, there is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an armed conflict exists. Article 2(1) itself contains no mention of any threshold for the intensity or duration of hostilities.¹³

Since 1949, States have frequently invoked this expansive definition of armed conflict, especially when seeking humanitarian pro...