The Law of Armed Conflict
What you want to understand: 🤔
- What do the various Geneva and La Haye conventions consist of?
- What are the 3 components of the Law of Armed Conflicts?
- What is the difference between human rights law and humanitarian law?
- What are the 5 core principles of the Law of Armed Conflicts?
I. Historical background
As early as the 16th, customary rules emerged in order to regulate wars and the treatment of the enemy.
Following the battle of Solferino (1859), Henri Dunant inspired the first Geneva Convention (1864) for the Amelioration of the Condition of the Wounded in Armies in the Field.
In the US, in the context of the Secession War (1861-1865), Franz Lieber elaborated the Lieber Code (aka General Orders n°100 of 1863) to set rules protect the rights of civilians and soldiers and to regulate the conduct of soldiers in time of war.
La Haye Conventions of 1899 and 1907 established rules that warring parties have to follow not to commit war crimes. It notably addresses issues related to the use of certain weapons, the settlement of dispute, the treatment of war prisoners, the status of merchant ships or also the status of neutral powers for example.
The Second Geneva Convention (1906) for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field basically expended the principles of the first Geneva Convention (1864).
From then on the Law of Armed Conflict includes 2 dimensions: the Law of War (La Haye conventions) and Humanitarian Law (Geneva conventions).
The First World War highlighted the limits of the humanitarian and war laws that had been developed until then. Despite some efforts in the inter-war period and the elaboration of the Third Geneva Convention (1929) relative to the Treatment of Prisoners of War, the Second World War made the world realised the need for more complete and efficient judicial tools to protect war victims.
That’s why in 1949, four new Geneva conventions were ratified by 196 countries. They basically replaced and reinforced previous conventions and now constitute the basis of international humanitarian law:
- First Geneva Convention → Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
- It replaced the 1864 and 1929 conventions
- Second Geneva Convention → Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
- It completed the 1907 Hague Convention
- Third Geneva Convention → Treatment of Prisoners of War
- It replaced the 1929 convention
- Fourth Geneva Convention → Protection of Civilian Persons in Time of War
- It completed the 1899 and 1907 Hague Conventions
Throughout the second half of the 20th century, the law of armed conflicts extended to cover more domains like the protection of the environment, of child soldiers and of cultural goods for instance.
The 1949 Geneva Conventions were completed in 1977 with two protocols and another one 2005.
Progressively, in addition to the Law of War and Humanitarian Law, the Law of Armed Conflicts adopted a new dimension related to armament and the use of certain kinds of weapons. The 1999 Ottawa Convention has for example reinforced the overall architecture of the Law of Armed Conflicts as it dealt with the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction.
II. When does the Law of Armed Conflict apply?
The Law of Armed Conflicts applies in the context of both international and non-international armed conflicts.
While the four 1949 Geneva Conventions and the first 1977 protocol apply in the case of international armed conflicts, only the second 1977 protocol is dedicated to non-international armed conflicts.
III. Core principles of the Law of Armed Conflict
A. Principle of Humanity (aka unnecessary suffering)
This principle implies that warring parties must refrain from using certain means and methods in combat in order to limit the degree of violence and traumatism and respect human dignity.
The Martens clause, which can be found in multiple international conventions, states that “the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience” (1907 version).
B. Principle of Distinction
According to this principle, warring parties must distinguish military objectives from civilian populations and goods that should not be targeted. However, with the participation of civilians in war efforts, the distinction becomes rather subjective.
C. Principe of military necessity
This principle prohibits launching attacks if the ensuing benefits are still undetermined and only potential. Indiscriminate and non-accurate attacks are therefore also prohibited.
In order to save civilian lives in particular, the principle of precaution should be followed by warring parties when not sure of their objectives.
D. Principle of proportionality
Warring parties should adapt the means employed to the importance of the (military) objective pursued. Besides, civilian collateral damages should not be excessive with regards to the expected (military) results.
E. Principle of honour (aka chivalry)
According to this principle, treacherous means and expedients must not be used in armed conflicts. Warring parties should display fairness and respect for one another. For example, the principle of honour implies that prisoners of war should be treated with respect by their captors.
IV. Human Rights Law and Humanitarian Law
The four 1949 Geneva Conventions have in common their article 3 that deals with the protection of human life. What is called human rights law in peace time has a counterpart in war time called humanitarian law. These two sets of laws are exclusive but they share 3 fundamental principles:
- Principle of inviolability → guarantees the respect of every human being’s life and physical and moral integrity
- Principle of non-discrimination → individuals are treated without distinction of race, sex, nationality, political, philosophical and religious opinion
- Principle of security → no one should be held responsible for something one did not do; no one should suffer from reprisal, collective punishment, hostage taking and deportation; everyone should benefit from fundamental judicial guarantees