Routledge Handbook of the Law of Armed Conflict

Rain Liivoja, Tim McCormack, Rain Liivoja, Tim McCormack

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781136028885
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto militare

The law of armed conflict is a key element of the global legal order yet it finds itself in a state of flux created by the changing nature of warfare and the influences of other branches of international law. The Routledge Handbook of the Law of Armed Conflict provides a unique perspective on the field covering all the key aspects of the law as well as identifying developing and often contentious areas of interest.

The handbook will feature original pieces by international experts in the field, including academics, staff of relevant NGOs and (former) members of the armed forces. Made up of six parts in order to offer a comprehensive overview of the field, the structure of the handbook is as follows:

Part I: Fundamentals

Part II: Principle of distinction

Part III: Means and methods of warfare

Part IV: Special protection regimes

Part V: Compliance and enforcement

Part VI: Some contemporary issues

Throughout the book, attention is paid to non-international conflicts as well as international conflicts with acknowledgement of the differences. The contributors also consider the relationship between the law of armed conflict and human rights law, looking at how the various rules and principles of human rights law interact with specific rules and principles of international humanitarian law in particular circumstances.

The Routledge Handbook of the Law of Armed Conflict provides a fresh take on the contemporary laws of war and is written for advanced level students, academics, researchers, NGOs and policy-makers with an interest in the field.

Part I Fundamentals

DOI: 10.4324/9780203798362-2

The law of armed conflict (LOAC) is the branch of international law that seeks to place limitations on the use of violence in an armed conflict with a view to sparing those who do not directly participate in hostilities and restricting violence to the amount necessary to achieve the aim of the conflict, which is to weaken the military potential of the adversary. LOAC is thus distinct from the international law that establishes the prohibition of the use of force in international relations and the exceptions to that prohibition (Chapter 1).

The idea that restraint should be exercised in armed conflict is not of recent vintage. Quite the opposite: rudimentary rules governing warfare can be found in antiquity and, during the Middle Ages, a highly elaborate, if grossly imperfect, code of chivalry developed in medieval Europe. The ‘modern’ LOAC, however, has developed from the middle of the nineteenth century with the adoption of a series of treaties dealing with particular aspects of warfare (Chapter 2).

LOAC does not deal with each and every instance of violence; it only applies in armed conflict. International law distinguishes between two types of armed conflict – international and non-international – and regulates these somewhat differently. Thus, any application of the substantive rules of LOAC must be preceded by an assessment as to the existence and the legal character of the armed conflict (Chapter 3).

LOAC has the same range of sources as international law generally. In view of the historical development and humanitarian nature of LOAC, however, some of these sources have particular significance, or idiosyncrasies, with implications on the application of the law in practice (Chapter 4).

In regulating or moderating the use of violence in armed conflict, LOAC must strike a precarious balance between multiple interests that are sometimes in competition (Chapter 5). Particularly significant in this regard are considerations of military necessity and humanity, as well as the concepts of chivalry and sovereignty, in the development of LOAC rules.

It has become increasingly accepted that LOAC does not govern the conduct of belligerents in an armed conflict to the exclusion of other branches of international law. In particular, international human rights law continues to apply in armed conflict and its rules interact in different ways with those of LOAC (Chapter 6).

1 War and armed conflict

The parameters of enquiry

Dino Kritsiotis

DOI: 10.4324/9780203798362-3

Perhaps the very first truism to confront any scholar or student of the international laws of war or armed conflict is that these laws operate on the essential premise that a war or armed conflict has come into existence in a legal sense – that is, as a matter of international law. After all, it is that condition of ‘war’ or ‘armed conflict’ that presents the organising logic and design of these laws. It is that condition which supplies the raison d’être for the intervention of international law and, for better or for worse, it articulates what these laws are actually for. Recognising the possibilities of this condition in its various historical iterations,¹ international law thus counterpoised the laws of war against the so-called laws of peace,² proceeding from ‘some kind of more or less definite boundary between times of war and times of peace’.³

1 Christopher Greenwood, ‘The Concept of War in Modern International Law’ (1987) 36 ICLQ 283. 2 Hence, Stephen C Neff has written of a ‘distinct “institution” or “state” of war’ – and of a ‘set of rules peculiar to war’ – in his War and the Law of Nations: A General History (CUP 2005) 15. Carsten Stahn has written more recently how these ‘types of rules’ – ie the laws of peace and the laws of war – ‘were treated as alternative frameworks’: see Carsten Stahn, ‘Jus Post Bellum: Mapping the Discipline(s)’ (2008) 23 American University ILR 311, 316. 3 Neff, War (n 2) 15.

Evidence of this summa divisio of the discipline of international law – of this fragmentation between war and peace occurring at its very core – can be gleaned from the 1868 St Petersburg Declaration, where the Contracting Parties assumed an undertaking ‘in case of war among themselves’,⁴ and the 1904 Hague Convention relative to Hospital Ships, which addressed its Contracting Powers ‘in case of war between two or more of them’.⁵ Furthermore, as part of this thematic organization of international relations, the whole purpose of treaties of peace was to draw to a formal close the state of war and confirm the return to a state or condition of peace as far as the law was concerned: as Emer de Vattel informed us in his The Law of Nations (1758), the treaty of peace occurs ‘[w]hen the belligerent powers have agreed to lay down their arms, the agreement or contract in which they stipulate the condition of peace and regulate the manner in which it is to be restored and supported’,⁶ an incredibly important mechanism if it is to be believed that upon their activation the laws of war came to replace the laws of peace in their solemn entirety.⁷

4 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (‘St Petersburg Declaration’) (11 December 1868) 138 CTS 297. 5 (21 December 1904) 197 CTS 331, art 3(1). 6 Emer de Vattel, The Law of Nations, or, Principles of the Law of Nations Applied to the Conduct and Affairs of Nations and Sovereigns (1758) (Béla Kapossy and Richard Whatmore eds, Liberty Fund 2008) bk IV, ch II, s 9. See further Randall Lesaffer (ed), Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (CUP 2008). 7 Note Arnold D McNair advising against such ‘generalizations’ – and ‘hasty generalizations’ at that: ‘The Functions and Differing Legal Character of Treaties’ (1930) 11 BYBIL 100, 102.

The laws of war, then, announced the arrangements – most specifically, the rights and obligations – that would obtain during warfare,⁸ and it is for this reason that they attracted the Latin rubric of the jus in bello.⁹ As such, they should be properly distinguished from the laws of the jus ad bellum which itemise the rights (and, presumably, also the obligations) of states to pursue or to inaugurate warfare in their international relations. For international law, there was thus an understandable sequence of the affliction of public violence as between sovereigns, with the jus ad bellum appearing earlier in chronological order than the jus in bello – although, to be sure, the laws of the jus in bello possess a much older pedigree than those of the jus ad bellum.¹⁰ Even so, with their shared concentration on matters of war or bellum, we can appreciate why both of these corpuses – that of the jus ad bellum and the jus in bello – might attract the same designation of the laws of war,¹¹ for each in their own way involve laws of – that is, pertaining to or concerning – war. That said, at a separate level of analysis, it must be recalled that the laws of the jus ad bellum are predicated upon the existence of a state of peace inter partes, whose operation precedes any outbreak of public violence or any set of hostilities. As such, the preferred anchoring of the jus ad bellum would appear to be within the realm of the laws of peace,¹² a position that is sure to be reinforced by the fact that international law no longer provides for ‘war’ as the common denominator between the jus ad bellum and the jus in bello: whereas the former are defined by the occurrence of ‘force’, the latter are now activated by an ‘armed conflict’ and it cannot be assumed that these fields share an exact coincidence.¹³

8 It was Hugo Grotius who alerted us to how ‘practice’ had asserted more of an expansive conception of war than that provided by Cicero, where war was ‘a contention by force’: in his seminal De Jure belli ac pacis (1625), Grotius wrote that ‘the practice has prevailed to indicate by that name [ie war], not an immediate action, but a state of affairs; so that war is the state of contending parties, considered as such’: bk I, ch I, s 2. 9 Consider Robert Kolb, ‘Origin of the Twin Terms jus ad bellum/jus in bello’ (1997) 37 IRRC 553. 10 And, of more recent vintage altogether, to complete this order is the jus post bellum – a product of post-Cold War concerns such as transformative occupation, peace-building and international territorial administration – although this, too, comes with its own antecedents: see Jens Iverson, ‘Transitional Justice: Jus Post Bellum and International Criminal Law: Differentiating the Usages, History and Dynamics’ (2013) 7 IJTJ 413. 11 As is common in the literature, and maintained by Yoram Dinstein amongst others, that ‘[t]he law of war in its totality is subdivided into the jus in bello … and the jus ad bellum’ in The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, CUP 2010) 3. 12 As appears to be the approach, for example, of Adam Roberts and Richard Guelff (eds), Documents on the Laws of War (3rd edn, OUP 2000) 1. Note, also, that certain violations of the laws of peace were characterised as ‘crimes against peace’ in the Nuremberg Charter (8 August 1945) 82 UNTS 279, art 6(a). 13 The position of the ICJ in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) [1986] ICJ Rep 14, ¶ 216 (‘[c]learly, [the] use of force may in some circumstances raise questions of such law’) needs to be contrasted with that of the Appeals Chamber of the ICTY in Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (Case no IT-94-1, ICTY Appeals Chamber, 2 October 1995) ¶ 70 (an international armed conflict exists ‘whenever there is a resort to armed force’) (emphases supplied). See further Dino Kritsiotis, ‘The Tremors of Tadic’ (2010) 43 Israel LR 262, 278–279.

As for the laws of war stricto sensu (or jus in bello), these pronounced upon the detail of the legal relationship as applicable between belligerent states,¹⁴ whereas the legal relationship between belligerent and non-belligerent states stood to be governed by the laws of neutrality,¹⁵ and the relations as between non-belligerent states continued to be located within the laws of peace.¹⁶ So, within this overall framework developed by international law, the occurrence of a state or condition of war actually yielded consequences on multiple fronts aside from the activation and application of the laws of war, making clear that the determination as any change of the status quo of a given relationship could not and should not be lightly made.¹⁷ Importantly, the whole point of the laws of war was to admit a separate framework for action as between states so that, amongst other things, ‘[t]he soldier has the right to kill another soldier’,¹⁸ and where ‘military...