There are laws in war.
Far from being states of lawless anarchy, armed conflicts are governed by one of the most important bodies of rules in all of international law. International Humanitarian Law (IHL), the laws of armed conflict, provides protection to those affected by armed conflict without discrimination. Throughout the years, the rules of IHL have saved the lives, reduced suffering, and ensured the dignity and freedom of countless millions of people all over the world. These laws benefit both civilians and combatants, strengthen international peace and security, support the rule of law, and promote respect, dignity, and justice.
I am here to teach you the ins and outs of IHL, and this is the first post in a series that will hopefully accomplish just that. Why do you, a Deadspin reader, need to know the ins and outs of international humanitarian law? Because it’s a more interesting subject than you might assume, and citizens of the world having an awareness and understanding of IHL is all-important to ensuring protection and respect for armed forces and civilians.
This first piece will introduce you to the core concepts of IHL, the Geneva Conventions of 1949, and some background on the two types of conflicts in which the laws are applied.
What Are The Core Concepts Of International Humanitarian Law?
IHL is based on the fundamental ideals that persons who are not, or are no longer, participating in hostilities should be protected, and that the means and methods of warfare able to be employed by parties to a conflict are not unlimited. The core general principles of IHL are:
- The principle of distinction, which provides that parties to a conflict must distinguish between military objectives and civilian objectives, and may only target military objectives.
- The prohibition on attacking persons hors de combat (French for “outside the fight”), being anyone who is in the power of an adverse party, is defenseless (because of unconsciousness, shipwreck, wounds or sickness), or who expresses an intention to surrender, and abstains from any acts of hostility.
- The prohibition on inflicting unnecessary suffering, or causing a harm greater than that unavoidable to achieve legitimate military purposes.
- The principle of proportionality, which provides that belligerents may only use the amount and kind of force necessary to overcome the enemy and must act to limit collateral damage.
- The principle of necessity, which permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In an armed conflict, the only legitimate military purpose is to weaken the military capacity of the enemy.
The rules of IHL do not prohibit the use of violence, nor protect all persons from the effects of armed conflict.
Rules and conventions limiting the scope and effects of war had existed throughout history in civilizations and cultural systems all over the world. These ranged from ad hoc rules of warfare agreed between opposing commanders on the field of battle aimed at protecting vital resources, notions of honor in not attacking a defenceless opponent, and respect for human dignity in respecting the civilian population. The first-known attempt to produce a binding document of existing laws and customs of war was the 1863 Lieber Code intended for use by the Union soldiers in the American Civil War.
The International Committee of the Red Cross and Red Crescent (ICRC) was founded by Swiss businessman Henry Dunant after he witnessed the horrors of the battle of Solferino in 1859. Dunant, traumatised by the bloody scenes of unnecessary brutality which left more than 40,000 combatants dead and dying, conceived the idea of an impartial humanitarian body which would offer free medical aid to all parties to an armed conflict without discrimination or favor. Dunant famously penned his memoir titled A Memory of Solferino, and championed the drafting of the 1864 Geneva Convention and the creation of the ICRC. Dunant received the first-ever Nobel Peace Prize in 1901, and the ICRC continues to operate worldwide as a neutral, impartial, and independent humanitarian organization seeking to ensure respect of rights of those affected by armed conflict and situations of serious violence all over the world (and has itself, as an institution, won the Nobel Peace Prize a record three times).
The laws of IHL are, by necessity, the same for everyone—regardless of their nationality, and regardless of whether you think they are fighting for a just cause or not. When considering your opinion of the correct interpretation of the laws or what you think the laws should be, remember that you can’t have one set of rules for your nation and another set of rules for everyone else. Your country’s good guys have the same permissions, restrictions, and protections as the enemy bad guys, and your country’s civilians are treated the same as every other country’s civilians. Every time you apply the law to a scenario involving your nation in combat, try reversing the roles and see if you still get the same result.
Where Do The Geneva Conventions Fit In?
If you have any basic awareness of IHL, it’s probably because you learned about the Geneva Conventions in school. The four Geneva Conventions of 1949 are the only treaties under international law which have achieved universal ratification. (Several others are close; the United States remains the lone holdout to the Convention on the Rights of the Child, for example.) This serves as a powerful reminder of the importance of the laws of IHL—the rejoinder that “there are no rules in war” is especially idiotic considering that the laws of armed conflict are the only body of laws which every single nation in the world has agreed to be bound by.
The First Geneva Convention of 1949, referred to in shorthand as GC I, protects wounded and sick members of armed forces in the field. It provides rules for the protection of medical personnel, the evacuation and treatment of the wounded and sick, and regulates the use of protective emblems such as the red cross and red crescent. The Second Geneva Convention, or GC II, similarly protects the wounded, sick, and shipwrecked members of armed forces at sea. The Third Geneva Convention, or GC III, provides protection to prisoners of war. It provides rules regarding their capture, their internment, and their release and repatriation. The Fourth Geneva Convention, or GC IV, provides protection for civilians in times of armed conflict and lays down rules relating to the occupation of territory by hostile forces.
The First Additional Protocol of 1977, or AP I, provides additional rules relating to international armed conflicts, including rules on the conduct of hostilities and the protection of the civilian population. The Second Additional Protocol of 1977, or AP II, provides a far smaller body of rules relating to certain types of non-international armed conflicts, including treatment of the wounded and sick and protection of the civilian population. The Third Additional Protocol of 2005, or AP III, provides for the use of an additional protective emblem.
Since every state in the world has ratified the four 1949 Conventions, they therefore necessarily apply to every armed conflict the world over. Additional Protocols I and II have been ratified by 174 and 168 states respectively, and therefore have wide, but not universal, application. They only apply as a matter of treaty law in conflicts between or within ratifying states. Important holdouts to the APs include the United States, Iran, Israel, India, Pakistan, and Turkey.
The famous Article 1 common to each of the Conventions provides that each state party undertakes “to respect and to ensure respect” for the Conventions “in all circumstances”. This provision is one of the most powerful and unique in all of international law. It means that states are not only responsible for their own compliance with the Conventions, but are also responsible for ensuring the respect of other states and non-state parties, even in conflicts to which they are not party.
Each Convention provides for a class of protected persons, those whom the Convention is primarily designed to protect. GC I protects wounded and sick members of armed forces in the field; GC II protects wounded, sick, and shipwrecked members of armed forces at sea; GC III protects prisoners of war; and GC IV protects civilians in the hands of the enemy.
In addition, each Convention and AP I contains a regime governing grave breaches, being the most serious violations of each, including prohibited acts against protected persons—the killing of a prisoner of war is a quintessential example. The grave breaches regime provides that all states must criminalize grave breaches in their domestic legislation and search for and prosecute or hand over for prosecution any person on their territory who has allegedly committed a grave breach of the Conventions. Therefore, Fiji would be under an obligation to search for and prosecute an Andorran national on its territory accused of committing a grave breach in the Ecuador-Peru war of 1995.
When a reference is made to the “Geneva Conventions”, it is most likely meant as a reference to the four Conventions of 1949. Note, however, that there are other instruments covering a broad range of topics which were also concluded in southwest Switzerland. The first three Geneva Conventions predated World War II—the 1864 and 1906 Conventions provided protection for wounded combatants, while the 1929 Convention extended rules of humane treatment to prisoners of war—and were built on and replaced by the 1949 Conventions. The 1925 Geneva Protocol prohibits the use of chemical and biological weapons, the 1951 Geneva Convention Relating to the Status of Refugees recognizes persons’ right to seek asylum from persecution, and the 1954 and 1988 Geneva Accords respectively provided for cessation of hostilities in the Indo-China and Soviet-Afghan wars. (By the way, in the IHL context you wouldn’t refer to the “Geneva Convention”—you’d either refer to “the Conventions’” plural, or you’d give the number of the Convention you’re referring to.)
What Are Other Sources Of IHL?
In addition to the Geneva Conventions and the Additional Protocols, today’s IHL is sourced in many international treaties: the Hague Regulations governing the laws and customs of war; the 2000 Optional Protocol on the Involvement of Children in Armed Conflict; various treaties prohibiting and regulating certain types of weapons such as the 1993 Chemical Weapons Convention; treaties protecting cultural heritage and property such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; and international criminal law treaties such as the Rome Statute of the International Criminal Court.
In addition to their status at treaty law, the substantive provisions of the Conventions are binding on all states as a matter of customary international law—a hugely dense body of unwritten international laws binding on all states as evidence of “a general practice accepted as law”. In the event that a new country is formed or an existing state party withdraws from the Conventions, their substantive provisions would therefore continue to be binding. After Eritrea seceded from Ethiopia in 1993, it did not ratify the Conventions and explicitly resisted their application by succession until it ratified them in 2000. Consequently, during the first years of the Ethiopia-Eritrea war, the Conventions were not applicable under treaty law. However, the Eritrea-Ethiopia Claims Commission found that the substantive rules of the Geneva Conventions had achieved customary status and were therefore applicable regardless. Technical and detailed provisions of the Conventions, such as the permission for prisoners of war to use tobacco, were suggested as examples of rules which are not substantive and would not be binding at customary law.
In 2005, the ICRC published its epic study on Customary International Humanitarian Law, and articulated a list of 161 rules which are said to have crystallized as customary norms binding on all states. Many of the provisions of the Additional Protocols have achieved customary status.
The sum-total of international humanitarian law is formed of treaty laws, customary laws, and the general principles mentioned above—with judicial decisions and leading academia forming subsidiary means of determining the law.
Domestic laws and regulations such as a nation’s constitution and its military manual are naturally hugely important in shaping its policy of adherence to the rules of international humanitarian law. However, a state cannot invoke its internal law as justification for breaching an international treaty law obligation.
To What Armed Conflicts Are IHL Applied?
The world of armed conflict is divided into two domains: international armed conflict (IAC), and non-international armed conflict (NIAC). Depending on the classification of the conflict, different rules apply (though in many areas the rules are the same in each), and there are vastly different legal and political implications which accompany such classification.
To over-simplify, an IAC is a conflict which pits one state against another, while a NIAC is a qualifying armed conflict between a state and a non-state armed group, or between multiple non-state armed groups. The rules of IAC also apply in the event of the occupation of the territory of a state by hostile forces of another state, and in qualifying wars of national liberation. Throughout history, almost all wars were fought between states, and wars involving non-state armed groups were far less common. In present times, the reverse is true: NIACs have become by far the most common form of conflict globally as the prevalence of conflicts involving at least one non-state armed group has increased.
Why do we have different rules for IACs and NIACs? The simple answer is that the nations of the world—who collectively make the laws of IHL—do not want to give combatant immunity to non-state armed groups (which might include groups that have taken up arms with a view to overthrowing their government), do not want the international community to regulate conflicts that they see as purely internal matters, and feel that extending the protections and safeguards granted by the law of IAC to non-state armed groups would bestow them with an element of legitimacy which states want to avoid at all costs.
An international armed conflict exists whenever there is a resort to armed force between States. The threshold of intensity that must be met is therefore extremely low—the so-called “one shot theory” provides that any use of force between states would trigger an IAC. The classification of a conflict is always governed by the facts on the ground, rather than by the statements, intentions, or denials of the belligerents, and it does not matter whether (for example) one of the parties does not formally recognize the government of the adverse party. Even in the absence of violence, a formal declaration of war (a rarity in modern warfare) or a hostile occupation of one state’s territory would also trigger an IAC and the application of the Conventions. Note that the terms “war” and “armed conflict” are not the same, and situations which constitute one may not constitute the other. The term “war” evokes political and emotional connotations over and above its legal meaning, and in the absence of a declaration of war, IHL is simply concerned with the existence or absence of armed conflicts.
On the other hand, two criteria must be satisfied in order for a conflict to be classified as a NIAC, for the purpose of distinguishing an armed conflict from lower-scale incidents such as banditry, unorganized and short-lived insurrections, which are subject to regular domestic law enforcement and not IHL. These criteria are: first—the hostilities must reach a minimum level of intensity (taking into account factors such as the number and character of individual confrontations, the presence of military forces on the government side rather than mere law enforcement, and the number of casualties); and secondly—the non-governmental belligerent(s) must satisfy a minimum level of organization so as to qualify as a “party to the conflict” (taking into account factors such as the existence of a command structure and disciplinary rules and mechanisms, control of territory, and the ability to speak with one voice and negotiate and conclude ceasefire and peace agreements).
A complex conflict involving different parties may give rise to multiple parallel conflicts with different classifications.
According to the Geneva Academy’s Rule of Law in Armed Conflicts project, international armed conflicts currently being fought worldwide include those between Russia and Ukraine, between India and Pakistan, and between Syria and each of the coalition partners fighting on its territory. Current situations of military occupation include Armenia occupying the Nagorno-Karabakh region of Azerbaijan, Russia occupying the regions of South Ossetia and Abkhazia in Georgia, and the Israeli occupation of Palestine. Non-international armed conflicts now raging include those in Syria, South Sudan, Afghanistan, and Yemen. The Geneva Academy’s 2017 War Report catalogued at least 55 armed conflicts in 29 different states and territories.
The overwhelming majority of the 1949 Geneva Conventions, and the entirety of Additional Protocol I, are directed only to IACs. Only Article 3 common to the Conventions—the famous mini-Convention—and Additional Protocol II, are directed specifically to NIACs. Nevertheless, many rules of IHL are protective in nature and under customary international law equally apply to each type of conflict—the ICRC’s study on customary international humanitarian law referred to above concluded that 136 of the 161 customary rules applied equally to IACs as well as NIACs, with a further five rules arguably so applying. The main two areas where the rules differ relate to prisoner of war status and the law of occupation—neither are found in the law of NIAC. Crucially, nearly all other rules of IHL apply across the board, including those relating to the principle of distinction, the conduct of hostilities, the use of weapons, the treatment of civilians and persons hors de combat, the wounded and sick, and individual responsibility for war crimes.
Additional Protocol II is extremely brief—only 28 articles (many of them procedural), while Additional Protocol I spans 102 articles—largely because the nations at the 1977 conference could not agree on a dense body of rules that should apply to NIACs. The story goes that one night toward the end of the conference the representatives of Canada and Pakistan got together at a Geneva establishment and together took a red pen to the draft AP II, slashing out provisions that they thought would be rejected in the hope of producing a document that would achieve consensus. The next day, the representative of the Holy See attempted to unwind some of the editing and reinserted a few provisions, and ended up with the slim version we have today.
Additional Protocol I also applies to wars of national liberation—those in which “peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination.” The authority representing such peoples can make a unilateral declaration under AP I that the Conventions and AP I are to be binding on it and that it accepts the same rights and obligations assumed by states parties. There has only ever been one valid declaration under this provision, by the Polisario Front in 2015, in its fight for the independence of Western Sahara from Morocco, which had acceded to AP I in 2011. The declarations of several other groups, such as that of the National Democratic Front of the Philippines in 1996, have had to be rejected because their nation is not a party to AP I.
I hope you have enjoyed this introduction to the world of international humanitarian law. Keep an eye out for the next installment in this series, which will cover the prohibition on the use of force under international law.