Law Applicable to Armed Conflict

The massacre of civilians in the midst of armed conflict has a long and dark history. Armed conflict is both a question of fact and a question of law. Since 1945, the United Nations has prohibited the use of armed force in relations between States, except in cases of self-defence or aggression. However, the definition of aggression as a crime under international criminal law was only adopted in 2010. Moreover, there is no definition in international law of armed conflict as such. Since 1949, common article 2 of the four Geneva Conventions has contained a definition of international armed conflict that triggers the application of humanitarian law. Common Article 3 of the four Geneva Conventions contains the minimum rules for non-international armed conflicts, without giving a clear definition of such conflicts. The First Additional Protocol of 1977 to the Geneva Conventions and the jurisprudence of international tribunals broadened the definition of international armed conflict and provided criteria for the interpretation of that definition. The issue with these definitions is the obligation to respect the rules of customary treaty and humanitarian law specifically applicable to international armed conflicts, and not the narrower rules that apply to non-international armed conflicts. The Geneva Conventions are the result of a process that developed in several stages between 1864 and 1949.

Emphasis was placed on the protection of civilians and those who can no longer fight in armed conflict. Following the Second World War, the four Conventions were revised on the basis of earlier revisions and some of the 1907 Hague Conventions and re-adopted by the international community in 1949. Subsequent conferences added provisions prohibiting certain methods of warfare and addressing issues of civil wars. Conventional and customary international law does not provide a clear definition of the concept of armed conflict. The commentary to joint article 2 clarifies that any difference that arises between two States and leads to the intervention of members of the armed forces constitutes an armed conflict within the meaning of the Geneva Conventions, even if one of the parties denies the existence of a state of war. The commentary states that the duration of the conflict, the number of deaths or the number of forces involved make no difference in the characterization of the conflict. The mere fact that the armed forces of one of the parties captured members of the opposing armed forces, even if there were no deaths, is sufficient to activate the law applicable to international armed conflicts. Therefore, unlike the rules applicable to internal armed conflicts, the existence of an international armed conflict does not depend on a requirement concerning the threshold of violence and the intensity of armed confrontations.

The Geneva Law is directly inspired by the principle of humanity. It refers to those who do not participate in the conflict, as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance provided by impartial humanitarian organizations such as the ICRC. [26] This emphasis is found in the Geneva Conventions. International humanitarian law (IHL), also known as the law of armed conflict, is the law governing war (jus in bello). [1] [2] It is a branch of international law that aims to limit the effects of armed conflict by protecting persons not taking part in hostilities and by restricting and regulating the means and methods of warfare available to combatants. ELAC cooperates with national, international and non-governmental bodies working on and with IHL. Some of our work in this area has been funded or commissioned by such organizations or produced for use by such facilities. ELAC is co-organizer of the annual Transatlantic Workshop on International Law and Armed Conflict, which brings together lawyers from academia, governments and armed forces, civil society and the International Committee of the Red Cross to discuss the challenges of IHL. After the end of a conflict, people who have committed a violation of martial law, and in particular atrocities, can be held individually responsible for war crimes through judicial proceedings. The Fourth Geneva Convention focuses on the civilian population. The two Additional Protocols adopted in 1977 expand and strengthen civil protection in international (PA I) and non-international (PA II) armed conflicts: for example, by introducing a ban on direct attacks against civilians.

A “civilian” is defined as “any person who is not a member of the armed forces”, including foreigners and refugees. [37] However, it is recognized that operations can result in civilian casualties. Luis Moreno Ocampo, chief prosecutor of the International Criminal Court, wrote in 2006: “International humanitarian law and the Rome Statute allow belligerents to carry out proportionate attacks against military targets, even if civilians are known to be killed or injured.