HUMANITARIAN AND SECURITY LAW
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
6. JUS IN BELLO- CONFLICT QUALIFICATION, CONDUCT OF HOSTILITIES
6.1. CLASSIFICATION OF HOSTILITIES
6.1.1. THE LAWS OF WAR: A BRIEF RECALL
► Before the UN Charter Law was not prohibited → the League of Nations Charter only asked for 3
months cool-off periods prior
o Aggressive war was not a crime.
► => International humanitarian law (IHL) grew from backdrop where armed force was routinely used
and completely lawful.
o As such, there were ‘rules of the game’, chivalry and other such procedures, designed to
ritualise war and minimise its unnecessary impact.
o These limitations became obsolete through technology and mechanised warfare in the 1800s:
▪ 1856 Crimean War,
▪ 1859 Franco-Austrian War,
▪ 1861-1864 US Civil War.
► => war was becoming decentralised allowing people outside the conflict to see the suffering.
o Early efforts were oriented thus into limiting unnecessary suffering.
6.1.2. EARLY INTERNATIONAL REACTIONS:
► 1863: foundation of the International Committee for the Red Cross (ICRC), with Henri Dunant as its
leader
o Red Cross (ICRC), though a private institution and not an IO, is hugely influential and recognised
in 1949 Geneva Conventions.
o It even gives confidential advice to States.
o ICRC grew modestly in the face of international conflicts since 1864.
► Adoption of the ‘Lieber Code’ (named after Francis Lieber) during US Civil War
o = the unilateral practice of the Union in the North not to use certain practices against the South
(the Confederacy) in the US.
o First seeds of IHL.
1
, HUMANITARIAN AND SECURITY LAW
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
► Signature of the First Geneva Convention, 1864, for the protection of the Sick and the Wounded
o Idea that something could be done about the conflict.
► Hague Conferences of 1899 and 1907 and the passing of the Hague Conventions and Regulations
o Body of ‘Hague law’, regulating how hostilities are conducted.
o Limitations on certain types of weapons causing unnecessary suffering – e.g., exploding bullets,
toxic gas, etc.
o Logic behind them was to limit the means available to states – not using particularly aggressive
weaponry.
o To this body of law, we could also add the new Chemical Weapons Convention, as well as
Nuclear Weapons Prohibition Convention.
► The Geneva Conventions, 1949 → Idea not only to limit weapons, but to prescribe rules of conduct
during armed conflict. (contrasting to the Hague Law)
o First Geneva Convention (GC I), for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field (original 1864);
o Second Geneva Convention (GC II), for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (original 1906)
o Third Geneva Convention (GC III), relative to the Treatment of Prisoners of War (original 1929)
o Fourth Geneva Convention (GC IV), relative to the Protection of Civilian Persons in Time of War
(1949)
o Impact of the Geneva Conventions – parallel regime to Hague Law (Geneva Law)
▪ Common Article 2 sets out that they apply across all international armed conflicts.
• Sets out the scope of application of the conventions and of IHL
▪ All four GCs are ratified by every UN State: as such, they are the essence of customary
international law for all, including new States (see Eritrea-Ethiopia claims commission)
• Several principles also elevate to jus cogens (e.g., War Crimes as grave
breaches)
• This means that there are universally agreed and there is an expectation that
every new state will ratify them
• Rules contained are widely assumed to represent international customary law
▪ Set out a comprehensive series of protections during hostilities to wide categories of
individuals, communities and groups, and other objects.
2
, HUMANITARIAN AND SECURITY LAW
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
▪ Seen as the main IHL instruments. ‘Hague Law’, which regulates the technical aspects
of warfare, has been supplanted by ‘Geneva Law’, which is meant to incorporate
principles of ‘humanity’ into armed conflict.
▪ Additional Protocols – linked to the Conventions, Common Interpretation.
► Additional Protocols, 1977 & 20051
o Protocol I (1977) (AP I), relating to the Protection of Victims of International Armed Conflicts
o Protocol II (1977) (AP II), relating to the Protection of Victims of Non-International Armed
Conflicts
▪ Less signatories – US, Israel, etc. are not.
▪ Important for the difference between IAC and NIAC.
o Protocol III (2005) (AP III), relating to the Adoption of an Additional Distinctive Emblem
▪ Relating to Red Cross, Red Crescent, Red Crystal.
6.1.3. SCOPE OF APPLICATION OF IHL
► Historically, a ‘declaration of war’ was commonplace, to give the enemy time to prepare defences.
► Today, factual existence of hostilities (armed conflict)2 only required: no need for formalities such as
‘declarations of war’ (Common Article 2; ICJ, Nuclear Weapons Advisory Opinion).
o Falklands War, 1982
▪ Argentina occupied the Falkland Islands. Neither Argentina nor UK declared a war –
they thought they were taking back their land → there was still an armed conflict.
o Iraq invasion by United States and United Kingdom, 2003
▪ No declaration of war → war was still considered to exist on the outbreak of violence.
▪ When the first coercive acts began
o Heglig incident (Sudan/South Sudan), 2012
o Armenia-Azerbaijan conflict, 2020
▪ Gunfire, troops exchanged, bombs → armed conflict.
► This precludes States from evading their obligations by failing to observe formalities.
► Court and lawyers look at the facts→ we want a maximum standard of protection
1
Note: protocols not ratified by all States: several important States (United States, Israel, Pakistan, Turkey, and Iran) have not ratified
any of the protocols. Thus, even if many regards them as custom (see ICTY), it is not that clear-cut. Nevertheless, many States have
these rules in their military codes => State practice is there, although opinio juris is not accepted. They feel that they must retain
discretion and not bind themselves. Nb. Some have even claimed that custom in military law cannot be formed without the US (US
to have a veto power – Prof. Schmid).
2
Different requirements for IACs and NIACs though.
3
, HUMANITARIAN AND SECURITY LAW
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
6.1.4.DEFINITION OF AN ARMED CONFLICT
► Move away from the language of ‘war’ and its historical connotations (and vagueness) towards ‘armed
conflict’.
► The existence of the conflict must be ascertained factually → but Definition left to practice.
► Best definition seems to be in ICTY Tadić decision (also embraced by ILC in Articles on the Effects of
Armed Conflicts on Treaties, 2012):
o “…an armed conflict exists whenever there is resort to armed force between States or
protracted armed violence between governmental authorities and organised armed groups or
between such groups within a State. International humanitarian law applies from the initiation
of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion
of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.”
o Time element: must be something more- protractive; standard is higher for Non-international
armed conflict (NIAC)
o Two regimes → One for IACs and one for NIACs.
6.1.5. CLASSIFICATION OF CONFLICTS AND COMMON ARTICLE 3
► Difference between international and Non-International Armed Conflicts IAC vs NIAC
► Determining the type of conflict is very important because it has to be done quickly, each party might
have different understanding of which law applies; each party would ant to benefit from the higher or
lowers standard of protection in order to benefit them → use Common Article 3 to determine
► Classification of a situation is important because IHL cannot apply if an armed conflict does not exist.
► One article that is common in terms of wording across all four Geneva Conventions: Common Article
3 = suggests that in all conflicts that are not of international character there are nevertheless basic
principles of humanity that must be respected no matter the nature of the conflict → whether IAC or
NIAC, something must apply
o Was the only article in 1949 that admitted of the possibility that the rules on IHL would apply
both to international armed conflicts (IACs) and non-international armed conflicts (NIACs),
though protections in NIAC are weaker in the GCs. → idea of a minimum level of standards
that must always be respected.
▪ States were reluctant to afford the same respect to belligerent internal groups (as to
other states) → backdrop of coups and overthrown governments – Hungary and
4
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
6. JUS IN BELLO- CONFLICT QUALIFICATION, CONDUCT OF HOSTILITIES
6.1. CLASSIFICATION OF HOSTILITIES
6.1.1. THE LAWS OF WAR: A BRIEF RECALL
► Before the UN Charter Law was not prohibited → the League of Nations Charter only asked for 3
months cool-off periods prior
o Aggressive war was not a crime.
► => International humanitarian law (IHL) grew from backdrop where armed force was routinely used
and completely lawful.
o As such, there were ‘rules of the game’, chivalry and other such procedures, designed to
ritualise war and minimise its unnecessary impact.
o These limitations became obsolete through technology and mechanised warfare in the 1800s:
▪ 1856 Crimean War,
▪ 1859 Franco-Austrian War,
▪ 1861-1864 US Civil War.
► => war was becoming decentralised allowing people outside the conflict to see the suffering.
o Early efforts were oriented thus into limiting unnecessary suffering.
6.1.2. EARLY INTERNATIONAL REACTIONS:
► 1863: foundation of the International Committee for the Red Cross (ICRC), with Henri Dunant as its
leader
o Red Cross (ICRC), though a private institution and not an IO, is hugely influential and recognised
in 1949 Geneva Conventions.
o It even gives confidential advice to States.
o ICRC grew modestly in the face of international conflicts since 1864.
► Adoption of the ‘Lieber Code’ (named after Francis Lieber) during US Civil War
o = the unilateral practice of the Union in the North not to use certain practices against the South
(the Confederacy) in the US.
o First seeds of IHL.
1
, HUMANITARIAN AND SECURITY LAW
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
► Signature of the First Geneva Convention, 1864, for the protection of the Sick and the Wounded
o Idea that something could be done about the conflict.
► Hague Conferences of 1899 and 1907 and the passing of the Hague Conventions and Regulations
o Body of ‘Hague law’, regulating how hostilities are conducted.
o Limitations on certain types of weapons causing unnecessary suffering – e.g., exploding bullets,
toxic gas, etc.
o Logic behind them was to limit the means available to states – not using particularly aggressive
weaponry.
o To this body of law, we could also add the new Chemical Weapons Convention, as well as
Nuclear Weapons Prohibition Convention.
► The Geneva Conventions, 1949 → Idea not only to limit weapons, but to prescribe rules of conduct
during armed conflict. (contrasting to the Hague Law)
o First Geneva Convention (GC I), for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field (original 1864);
o Second Geneva Convention (GC II), for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (original 1906)
o Third Geneva Convention (GC III), relative to the Treatment of Prisoners of War (original 1929)
o Fourth Geneva Convention (GC IV), relative to the Protection of Civilian Persons in Time of War
(1949)
o Impact of the Geneva Conventions – parallel regime to Hague Law (Geneva Law)
▪ Common Article 2 sets out that they apply across all international armed conflicts.
• Sets out the scope of application of the conventions and of IHL
▪ All four GCs are ratified by every UN State: as such, they are the essence of customary
international law for all, including new States (see Eritrea-Ethiopia claims commission)
• Several principles also elevate to jus cogens (e.g., War Crimes as grave
breaches)
• This means that there are universally agreed and there is an expectation that
every new state will ratify them
• Rules contained are widely assumed to represent international customary law
▪ Set out a comprehensive series of protections during hostilities to wide categories of
individuals, communities and groups, and other objects.
2
, HUMANITARIAN AND SECURITY LAW
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
▪ Seen as the main IHL instruments. ‘Hague Law’, which regulates the technical aspects
of warfare, has been supplanted by ‘Geneva Law’, which is meant to incorporate
principles of ‘humanity’ into armed conflict.
▪ Additional Protocols – linked to the Conventions, Common Interpretation.
► Additional Protocols, 1977 & 20051
o Protocol I (1977) (AP I), relating to the Protection of Victims of International Armed Conflicts
o Protocol II (1977) (AP II), relating to the Protection of Victims of Non-International Armed
Conflicts
▪ Less signatories – US, Israel, etc. are not.
▪ Important for the difference between IAC and NIAC.
o Protocol III (2005) (AP III), relating to the Adoption of an Additional Distinctive Emblem
▪ Relating to Red Cross, Red Crescent, Red Crystal.
6.1.3. SCOPE OF APPLICATION OF IHL
► Historically, a ‘declaration of war’ was commonplace, to give the enemy time to prepare defences.
► Today, factual existence of hostilities (armed conflict)2 only required: no need for formalities such as
‘declarations of war’ (Common Article 2; ICJ, Nuclear Weapons Advisory Opinion).
o Falklands War, 1982
▪ Argentina occupied the Falkland Islands. Neither Argentina nor UK declared a war –
they thought they were taking back their land → there was still an armed conflict.
o Iraq invasion by United States and United Kingdom, 2003
▪ No declaration of war → war was still considered to exist on the outbreak of violence.
▪ When the first coercive acts began
o Heglig incident (Sudan/South Sudan), 2012
o Armenia-Azerbaijan conflict, 2020
▪ Gunfire, troops exchanged, bombs → armed conflict.
► This precludes States from evading their obligations by failing to observe formalities.
► Court and lawyers look at the facts→ we want a maximum standard of protection
1
Note: protocols not ratified by all States: several important States (United States, Israel, Pakistan, Turkey, and Iran) have not ratified
any of the protocols. Thus, even if many regards them as custom (see ICTY), it is not that clear-cut. Nevertheless, many States have
these rules in their military codes => State practice is there, although opinio juris is not accepted. They feel that they must retain
discretion and not bind themselves. Nb. Some have even claimed that custom in military law cannot be formed without the US (US
to have a veto power – Prof. Schmid).
2
Different requirements for IACs and NIACs though.
3
, HUMANITARIAN AND SECURITY LAW
LECTURE NOTES: JUS IN BELLO- CONFLICT QALIFICATION
6.1.4.DEFINITION OF AN ARMED CONFLICT
► Move away from the language of ‘war’ and its historical connotations (and vagueness) towards ‘armed
conflict’.
► The existence of the conflict must be ascertained factually → but Definition left to practice.
► Best definition seems to be in ICTY Tadić decision (also embraced by ILC in Articles on the Effects of
Armed Conflicts on Treaties, 2012):
o “…an armed conflict exists whenever there is resort to armed force between States or
protracted armed violence between governmental authorities and organised armed groups or
between such groups within a State. International humanitarian law applies from the initiation
of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion
of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.”
o Time element: must be something more- protractive; standard is higher for Non-international
armed conflict (NIAC)
o Two regimes → One for IACs and one for NIACs.
6.1.5. CLASSIFICATION OF CONFLICTS AND COMMON ARTICLE 3
► Difference between international and Non-International Armed Conflicts IAC vs NIAC
► Determining the type of conflict is very important because it has to be done quickly, each party might
have different understanding of which law applies; each party would ant to benefit from the higher or
lowers standard of protection in order to benefit them → use Common Article 3 to determine
► Classification of a situation is important because IHL cannot apply if an armed conflict does not exist.
► One article that is common in terms of wording across all four Geneva Conventions: Common Article
3 = suggests that in all conflicts that are not of international character there are nevertheless basic
principles of humanity that must be respected no matter the nature of the conflict → whether IAC or
NIAC, something must apply
o Was the only article in 1949 that admitted of the possibility that the rules on IHL would apply
both to international armed conflicts (IACs) and non-international armed conflicts (NIACs),
though protections in NIAC are weaker in the GCs. → idea of a minimum level of standards
that must always be respected.
▪ States were reluctant to afford the same respect to belligerent internal groups (as to
other states) → backdrop of coups and overthrown governments – Hungary and
4
