The Evolution Of Laws In Armed Conflict

The Law of Armed Conflict, also known as International Humanitarian Law (IHL), is a branch of international law that seeks to limit the effects of war by protecting civilians and restricting the means and methods of warfare. The laws of war are created by treaties such as the Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first of which was drawn up in 1863. These laws are constantly evolving to meet the changing nature of conflicts, with new laws being created as needed. IHL comprises two strands: jus ad bellum, which deals with the justification for resorting to war, and jus in bello, which governs the conduct of warfare. While the idea of protecting civilians and limiting warfare dates back to ancient times, the systematic attempts to limit the savagery of warfare only began to develop in the 19th century, influenced by the Age of Enlightenment.

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The law of Geneva

The Geneva Conventions are a central part of international humanitarian law (IHL), also known as the laws of armed conflict or the laws of war. IHL seeks to limit the effects of armed conflict by protecting non-combatants, restricting warfare methods, and regulating the conduct of combatants. The Geneva Conventions are a key component of IHL, providing minimum protections, standards of humane treatment, and fundamental guarantees of respect for individuals affected by armed conflicts.

The first Geneva Convention, initiated by the International Committee for the Red Cross and Red Crescent (ICRC), was adopted in 1864 to establish the Red Cross emblem, signifying neutral status and protection. This convention was revised in 1906, 1929, and 1949, with the latest version being referred to as the "First Geneva Convention" or the "Geneva Convention of 1949." The convention deals with the treatment of wounded and sick members of armed forces in the field.

The Geneva Conventions have evolved over time, with additional conventions and protocols being adopted. In 1949, two new conventions were added, and the Geneva Conventions entered into force on October 21, 1950. These conventions addressed the treatment of prisoners of war, the protection of civilians during wartime, and the protection of wounded, sick, and shipwrecked members of armed forces at sea. The 1949 Geneva Conventions have been universally ratified and are considered the cornerstone of contemporary international humanitarian law, applicable in both international and non-international armed conflicts.

The Geneva Conventions and their Additional Protocols provide protections for individuals affected by armed conflicts, including wounded and sick soldiers, prisoners of war (POWs), civilians, and those rendered hors de combat or incapable of fighting. They ensure humane treatment without discrimination based on race, color, sex, religion, birth, or wealth. The conventions prohibit torture, assaults upon personal dignity, and execution without judgment. They also grant the right to proper medical treatment and care, extending protections to shipwrecked soldiers and hospital ships.

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Jus ad bellum

The idea of a right to war, or jus ad bellum, assumes a motive such as defending oneself from a threat or danger, and presupposes a declaration of war that warns the adversary. War is viewed as a loyal act, limited in space, time, and objectives. Wars begin with a declaration and end with a treaty or surrender agreement. Jus ad bellum was established in 1920 after World War I to protect the world from future tragedies, but it was not entirely successful, as evidenced by the occurrence of World War II.

The legality of the use of armed force in international relations is determined solely under jus ad bellum. While jus ad bellum provides the legal basis for resorting to force, jus in bello (or IHL) governs the conduct of parties engaged in an armed conflict, seeking to minimise suffering and protect victims regardless of party affiliation. Jus in bello is independent of jus ad bellum, as IHL does not take a position on the legality or legitimacy of war.

The criteria for jus ad bellum include possessing a just cause, which is considered the most important condition. Initiating acts of aggression is generally seen as unjust, and a group has a just cause to defend itself against such aggression. However, the term "aggression" is open to interpretation and can encompass various actions, making it challenging to define a consistent and sound account of just cause.

Other criteria for jus ad bellum include the principle of proportionality, which states that the desired end should be proportional to the means used. This principle overlaps with the moral guidelines of how a war should be fought, aiming to minimise destruction and invoke general balance of power considerations. Additionally, the principle of last resort stipulates that all non-violent options must be exhausted before the use of force can be justified. Jus ad bellum also emphasises that mass violence must not be undertaken if it is unlikely to secure a just cause, and that the aim of war should be to re-establish a just peace.

Jus in bello

The concept of the law of armed conflict, or international humanitarian law (IHL), has evolved over centuries, with its principles and rules being explored and debated by legal and military scholars. IHL, also referred to as jus in bello, specifically concerns the conduct of warfare and seeks to regulate the means and methods employed by combatants during armed conflicts.

The principles of jus in bello are founded on the notion of protecting non-combatants and restricting the choice of means and methods of warfare. This includes the principle of distinction, which requires belligerents to distinguish between combatants and protected civilians, and the principle of proportionality, which dictates that the harm caused to civilians or civilian property must be proportional and not excessive in relation to the anticipated military advantage.

The historical context of jus in bello reveals a long-standing expression of humanitarian norms for the protection of victims of armed conflict, as seen in ancient texts like the Old Testament. However, the systematic attempts to limit the brutality of warfare and establish rules of conduct are more recent, gaining momentum during the Age of Enlightenment in the 17th and 18th centuries. The 19th century witnessed the development of international treaties, such as the Hague Conventions of 1899 and 1907, and the Geneva Conventions, with the first drawn up in 1863, that specifically addressed the conduct of warfare and the rights and duties of belligerents.

The laws of war are not static and evolve as conflicts change over time. This adaptability ensures that the laws remain relevant and effective in governing contemporary armed conflicts. As new weapons and technologies emerge, the interpretation and application of jus in bello may also evolve, as seen in the ongoing scientific debate and concern over the use of depleted uranium projectiles.

The laws of war

The first traces of a law of war can be found in the Code of Hammurabi, created by Hammurabi, king of Babylon, in 1750 B.C. However, systematic attempts to limit the savagery of warfare only began to develop in the 19th century, influenced by the Age of Enlightenment. The Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first of which was drawn up in 1863, are important international treaties that deal with jus in bello. The main treaties of IHL are the 1949 Geneva Conventions, adopted after World War Two, along with their additional protocols.

Despite the existence of the laws of war, critics argue that they enable war and facilitate violence against civilians. There is also a debate about whether the foreseeable killing of large numbers of civilians can be considered compliant with IHL.

International humanitarian law

The laws of war have evolved over time, with the systematic attempts to limit the savagery of warfare only developing in the 19th century. The Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first of which was drawn up in 1863, produced treaties relating to war and conflict. The Geneva Conventions are a source of international law, alongside customary international law, general principles of nations, and case law.

IHL operates on a strict division between rules applicable in international and internal armed conflicts. It comprises a set of rules established by treaty or custom, which seeks to protect persons and property/objects affected by armed conflict, and limits the rights of parties to choose their methods and means of warfare. Military necessity, distinction, proportionality, humanity (or unnecessary suffering), and honour (or chivalry) are the five most commonly cited principles of IHL governing the legal use of force in armed conflict.

Criticisms of IHL include its failure to work towards the abolition of war, the fact that the foreseeable killing of large numbers of civilians may be considered compliant with IHL, and that it was largely created by Western powers to serve their interests. Academic debate also surrounds the question of whether IHL, constructed as a system prohibiting certain acts, can facilitate violence against civilians when belligerents argue their attacks are compliant with IHL.

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