Historical Development and Application of the Laws of Armed Conflicts

Historical Development and Application of the Laws of Armed Conflicts

No war is ever justified and there is nothing man can do to prevent war either nationally or internationally. The term armed conflict has become the standard in the realm of International Humanitarian Law. It replaces war as a concept though the concepts are sometimes used interchangeably.

The law in this area developed from the middle of the last century. In 1864, as a result of the pioneering work of Henry Dunant, who had been appalled by the brutality of the battle of Soulferino five years earlier, the Geneva Convention for the amelioration of the condition of the wounded in armies in the field was adopted.

This brief instrument was revised in 1906. In 1868, the declaration of St. Petersburg prohibited the use of small explosive or incendiary projectiles. The law of war was codified at the Hague conference of 1899 and 1907[1].

A series of conventions were adopted at these conferences concerning land and naval warfare which still form the basis of the existing rules. It was emphasized that belligerents remained subject to the law of nations and forbade the use of force against undefended villages and towns.

It defined those entitled to belligerent status and dealt with the measures to be taken as regards occupied territory. There were provisions concerning the rights and duties of neutral states and persons in case of war an emphatic prohibition on the employment of arms, projectiles or materials calculated to cause unnecessary suffering.

However, there were inadequate means to implement and enforce such rules with the result that such appeared to depend on reciprocal behaviour, public opinion and the exigencies of morale. Apart from the 1954 Hague Convention for the protection of cultural property in time of armed conflict, the rules of war remained as they had been formulated and codified in 1907. A number of conventions in the inter war period dealt with rules concerning the wounded and sick in armies in the field and prisoners of war[2].

Such agreements were replaced by the Four Geneva “Red Cross” convention of 1949 which dealt respectively with the amelioration of the condition of the wounded and sick in armed forces in the field, the amelioration of the conditions of wounded, sick and ship wrecked members of armed forces at the sea, the treatment of prisoners of war and the protection of civilian persons in time of war.

The essence of these Geneva Conventions is the principle that persons not actively engaged in warfare should be treated humanely. In 1977, two additional protocols to the 1949 conventions were adopted[3]. These built upon and developed the earlier conventions.

The “Law of the Hague” dealing primarily with interstate rules governing the use of force and the “Law of Geneva” concerning the protection of persons from the effects of armed conflicts are to some extent merged[4] while certain other issues such as wars of liberation, mercenaries and apartheid were also dealt with.

Application of Laws of Armed Conflicts

The rules of international humanitarian law apply to armed conflicts. Accordingly, no formal declaration of war is required in order for the convention to apply.[5]Why is it important to determine when the applicability of international humanitarian rules has been triggered? International human rights law and international humanitarian law share a number of protections and standards aimed at protecting civilians from the effects of war.

IHL is applicable in international armed con­flicts and in non-international armed conflicts, as well as in situations of occupation. The notion of “armed conflict” has, since 1949, re­placed the traditional notion of “war”. The international community is now more willing to demand the application of International Humanitarian law to internal conflicts.[6]

International armed conflicts are those in which two or more states are engaged in hos­tilities and those in which people have risen in opposition to a colonial power, foreign oc­cupation or racist crimes, commonly referred to as wars of national liberation. Above and beyond the applicable regime of human rights law, these situations are subject to a broad range of IHL rules, including those set forth in the four Geneva Conventions and Additional Protocol I.

A more limited set of rules is applicable in in­ternal armed conflicts. They are contained in particular in Article 3 common to the four Ge­neva Conventions and in Additional Protocol II. Article 3 represents the minimum standard of humanity and is relevant in every situation of armed conflict. Additionally, a number of rules originally designed to apply to interna­tional conflicts also apply, as customary rules, during non-international conflicts.

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In situa­tions of violence not amounting in intensity to an armed conflict, IHL does not apply. In such cases, the provisions of human rights law and the relevant domestic legislation govern the fate of those engaged in the acts of violence.

Article 2 Common to the Geneva Conventions states that in addition to the provisions which shall be implemented in peacetime, 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.”

Protocol I to the Geneva Conventions extends the situations covered by Common Article 2, stating that the situations to which the Protocol applies “include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination” (Art. 1.4).

While the Geneva Conventions and Protocol I indicate the type of situations to which they will apply, they do not provide a clear definition of “armed conflict”. The existence of an armed conflict is a precondition for the application of international humanitarian law, but the existing body of rules is not clear about the elements necessary to determine that a situation between two States has reached the threshold of an armed conflict. Furthermore, the International Criminal Tribunal for the former Yugoslavia has stated that “an armed conflict exists whenever there is a resort to armed force between States”.[7]

Furthermore, while Protocol II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organized armed groups; Common Article 3 applies also to armed conflicts occurring only between non-State armed groups.[8]

Common Article 3 was developed by Protocol II, 1977 which applies by virtue of article 1 to non-international armed conflicts which takes place in the territory of a state party between its armed forces. It does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, not being armed conflicts.[9]

 

[1] Green Contemporary law, Chapter 2

[2] The 1929 Convention one revising the 1864 and 1904 instruments on wounded and sick soldiers, the other on the treatment of prisoners of war

[3] Studies and essays part B and Draper; implementation and enforcement

[4] To form what the international court of justice in its Advisory Opinion or the legality of the threat or use of nuclear weapons, ICJ Reports, 1996, Pp.809, 827

[5] J.Pictet, Commentary on Geneva Conventions of 12 August 1949, Geneva 1952, vol.1, p.29

[6]Security Council Resolutions 788 (1992), 972 (1995) and 1001 (1995) with regard to the Liberian civil war

[7] Prosecutor v. Duško Tadi’c, case No. IT-94-1-A, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995, para. 70.

[8] In this context ICRC has indicated that “Protocol II ‘develops and supplements’ common article 3 ‘without modifying its existing conditions of application’. This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of [non-international armed conflicts] in general.” See ICRC, “How is the term “armed conflict” defined in international humanitarian law?

[9] Article 1(2) protocol II and article 8(2) of the Rome statute of the International Criminal court 1998

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