International Humanitarian Law

The term ‘international humanitarian law’ refers to the current understanding of the
ius in bello – the laws concerning the conduct of warfare. The ICRC, which is
considered to have a special relationship with international humanitarian law as its
guardian and promoter, describes it in the following manner:

International humanitarian law is part of the body of international law that

governs relations between states. It aims to protect persons who are not or are
no longer taking part in hostilities, the sick and wounded, prisoners and
civilians, and to define the rights and obligations of the parties to a conflict in
the conduct of hostilities.

Broadly speaking, that branch of public international law that seeks to moderate
the conduct of armed conflict and to mitigate the suffering that it causes.

The term international humanitarian law can be used to refer to all of the rules of
international law that concern armed conflict – whether customary, conventional,
Hague or Geneva.

History of Modern IHL

International humanitarian law is rooted in the customs and traditions of ancient

civilizations and religions.

History shows us that there has always been war – often waged with great
barbarity and resulting in immense suffering, but since the earliest of times, people
have also set limits to what can and cannot be done during fighting in an effort to
minimize suffering. As long as wars have been fought, efforts have been made to
protect people from the worst of its consequences.

However, modern-day international humanitarian law, while reflecting these

traditional ideals, has a more recent origin story.

IHL is a treaty-based law. The codification of IHL into treaty law began in the
nineteenth century. Since then, countries have agreed to a series of practical rules,
based on the bitter experience of modern warfare. As armed conflict continues to
evolve, so too do the rules that apply to them. For instance, the development of
new weapons, such as exploding bullets and chemical weapons, have led to the
introduction of rules to constrain or even prohibit their use.

In 1859, Europe was embroiled in war. It just so happened that on 24 June 1859, a
Swiss businessman named Henry Dunant passed through a field in northern Italy,
which had been the site of a deadly battle – the Battle of Solferino – between the
allied French and Sardinian armies against the Austrian army – that day. He was
not a soldier, or otherwise involved in the conflict, just a man on a business trip.

At the conclusion of the Battle of Solferino, more than 6,000 dead and 40,000
wounded – from both warring sides – were left strewn across the battlefield. The
respective armies’ medical services were completely overwhelmed, with medical
transport for the wounded almost non-existent and food and water scarce. The
9,000 wounded who could do so headed for the nearby village of Castiglione in
search of food and water. Appalled by what he was witnessing, Dunant paused his
business trip and with the help of local women cared for the wounded and dying
for three days and three nights. Rendering assistance to all wounded soldiers on a
neutral and impartial humanitarian basis.

Upon his return to Geneva, Dunant wrote and spoke about his experiences in
Solferino. He had a vision of creating a neutral, humanitarian organization that
could care for the wounded and dead in wartime. Dunant, in the book “A Memory of
Solferino” described his experiences what he witnessed in the battle of solferino and
simultaneously in his book he made two proposals firstly, “each state should
establish in time of peace a relief society to aid the army medical services in
time of war” and secondly, “state should conclude a treaty that would
facilitate the activities of these relief societies and guarantee a better
treatment of the wounded”. In next year the International Committee for the
Relief of Military Wounded was established with its permanent seat in Geneva.
The great success of the committee was that, within a very short time, it succeeded
to persuade the Swiss government to convene an international conference. In
1863, he and a small group of colleagues formed a committee to realize this vision.
This was the beginning of the International Committee of the Red Cross.

In subsequent years – and with the assistance of the Swiss Government – the
International Committee of the Red Cross grew into a truly global network,
dedicated to rendering medical care and providing humanitarian assistance to
people, regardless of religion, culture or nationality. Today, this network is known
as the International Red Cross and Red Crescent Movement (the Movement), and it
operates in all four corners of the globe, including in the most dangerous conflict
zones.

In 1864, Switzerland brought together government representatives to agree on

Dunant’s proposal for national relief societies to help military medical services.
The first Geneva Convention was signed by 13 countries that year, becoming the
founding text of contemporary IHL. Several more major diplomatic meetings took
place over the years – in the Hague (1899 and 1907) and in Geneva (1906, 1929,
1949) – advancing the laws of war, until the adoption of the four Geneva
Conventions in 1949 and their Additional Protocols in 1977. Over the years, and to
this day, ongoing developments, debates and negotiations continue to build and
strengthen international humanitarian law.

Four Geneva Conventions and Three Additional Protocols

The First Geneva Convention protects wounded and sick soldiers on land during
war.

This Convention represents the fourth updated version of the Geneva Convention on the
wounded and sick following those adopted in 1864, 1906 and 1929. It contains 64 articles. These
provide protection for the wounded and sick, but also for medical and religious personnel,
medical units and medical transports. The Convention also recognizes the distinctive emblems. It
has two annexes containing a draft agreement relating to hospital zones and a model identity card
for medical and religious personnel.

The Second Geneva Convention protects wounded, sick and

shipwrecked military personnel at sea during war.
This Convention replaced Hague Convention of 1907 for the Adaptation to Maritime Warfare of
the Principles of the Geneva Convention. It closely follows the provisions of the first Geneva
Convention in structure and content. It has 63 articles specifically applicable to war at sea. For
example, it protects hospital ships. It has one annex containing a model identity card for medical
and religious personnel.

The Third Geneva Convention applies to prisoners of war.

This Convention replaced the Prisoners of War Convention of 1929. It contains 143 articles
whereas the 1929 Convention had only 97. The categories of persons entitled to prisoner of war
status were broadened in accordance with Conventions I and II. The conditions and places of
captivity were more precisely defined, particularly with regard to the labour of prisoners of war,
their financial resources, the relief they receive, and the judicial proceedings instituted against
them. The Convention establishes the principle that prisoners of war shall be released and
repatriated without delay after the cessation of active hostilities. The Convention has five
annexes containing various model regulations and identity and other cards.

The Fourth Geneva Convention protects civilians, including

those in occupied territory.
The Geneva Conventions, which were adopted before 1949. were concerned with combatants
only, not with civilians. The events of World War II showed the disastrous consequences of the
absence of a convention for the protection of civilians in wartime. The Convention adopted in
1949 takes account of the experiences of World War II. It is composed of 159 articles. It contains
a short section concerning the general protection of populations against certain consequences of
war, without addressing the conduct of hostilities, as such, which was later examined in the
Additional Protocols of 1977. The bulk of the Convention deals with the status and treatment of
protected persons, distinguishing between the situation of foreigners on the territory of one of the
parties to the conflict and that of civilians in occupied territory. It spells out the obligations of the
Occupying Power vis-à-vis the civilian population and contains detailed provisions on
humanitarian relief for populations in occupied territory. It also contains a specific regime for the
treatment of civilian internees. It has three annexes containing a model agreement on hospital
and safety zones, model regulations on humanitarian relief and model cards.

Common Article 3
Article 3, common to the four Geneva Conventions, marked a breakthrough, as it covered, for
the first time, situations of non-international armed conflicts. These types of conflicts vary
greatly. They include traditional civil wars, internal armed conflicts that spill over into other
States or internal conflicts in which third States or a multinational force intervenes alongside the
government. Common Article 3 establishes fundamental rules from which no derogation is
permitted. It is like a mini-Convention within the Conventions as it contains the essential rules of
the Geneva Conventions in a condensed format and makes them applicable to conflicts not of an
international character:

It requires humane treatment for all persons in enemy hands, without any adverse distinction. It
specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, the
taking of hostages and unfair trial.
It requires that the wounded, sick and shipwrecked be collected and cared for.
It grants the ICRC the right to offer its services to the parties to the conflict.
It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force
through so-called special agreements.
It recognizes that the application of these rules does not affect the legal status of the parties to the
conflict.
Given that most armed conflicts today are non-international, applying Common Article 3 is of
the utmost importance. Its full respect is required.

Where do the Geneva Conventions apply?

The Geneva Conventions have been ratified by all States and are universally applicable.

The Additional Protocols to the Geneva

Conventions
In the two decades that followed the adoption of the Geneva Conventions, the world witnessed
an increase in the number of non-international armed conflicts and wars of national liberation. In
response, two Protocols Additional to the four 1949 Geneva Conventions were adopted in 1977.
They strengthen the protection of victims of international (Protocol I) and non-international
(Protocol II) armed conflicts and place limits on the way wars are fought. Protocol II was the
first-ever international treaty devoted exclusively to situations of non-international armed
conflicts.

In 2005, a third Additional Protocol was adopted creating an additional emblem, the Red Crystal,
which has the same international status as the Red Cross and Red Crescent emblems.

Basic principles of IHL

International humanitarian law is founded upon the following principles:

 the distinction between civilians and combatants;

 the prohibition of attacks against those hors de combat;1
 the prohibition on the infliction of unnecessary suffering;
 the principle of proportionality;
 the notion of necessity;
 the principle of humanity.

These basic principles are included in the specific rules and norms of IHL. They also help the
interpretation of the law when the legal issues are unclear or controversial. Depending on the
issue, the balance between the principles and interest shifts. For example, during hostilities,
military necessity may limit the notion of humanity by allowing for destruction, but in other
situations such as the protection of the wounded and sick, the principle of humanity is at the
heart of the legal rules.

1
Hors de combat"(out of combat) is a term used in international humanitarian law (IHL) which
describes a soldier who cannot fight due to being sick, wounded, captured or incapacitated.
These soldiers are not allowed to be attacked or harmed because they pose no threat.
The principle of distinction between civilians and
combatants
The principle of distinction underpins many rules of IHL and holds that only fighters may be
directly targeted. It is meant to protect civilians in armed conflict.

The principle of distinction is set out in Article 48 and 52 of Additional Protocol 1 to the Geneva
Conventions. The Conventions define who is a combatant and a military object that can be
lawfully attacked. Any direct attack against a civilian or civilian object is not only a violation of
IHL but also a grave breach.

Direct attacks against civilians and/or civilian objects are categorised as war crimes.
Additionally, any weapon which does not allow for a distinction between civilians/civilian
objects and fighters/military objects is also prohibited under IHL. The principle is also a rule of
customary international law2 and therefore binding on all states.

The prohibition of attacks against those hors de combat

The prohibition to attack any person hors de combat (those who are sick and wounded,
prisoners of war) is a fundamental rule of IHL. For example, while soldiers could be targeted
lawfully under normal circumstances, it is prohibited to target them if they surrender or are
wounded and no longer pose a threat. Additionally, they may be entitled to more protection if
they meet the criteria of a prisoner of war.

The prohibition on the infliction of unnecessary suffering

IHL permits violence, but it prohibits the infliction of unnecessary suffering and superfluous
injury. The exact meaning of the terms, however, is unclear and the protection may as such be
limited. One rule that has been established based on this principle is the prohibition on the use of
blinding laser weapons.

The principle of proportionality

The principle of proportionality limits potential harm to civilians: the principle demands that the
least amount of harm is caused to civilians, and when harm cannot be avoided, it needs to be
proportional to the military advantage.

The proportionality principle is most prevalent in Article 51(5)(b) of Additional Protocol I

concerning the conduct of hostilities. This article prohibits attacks when the civilian harm would
be excessive in relation to the military advantage sought. This is an area of hostilities where we
often hear the term ‘collateral damage’.
2
Customary international law refers to international obligations arising from
established international practices, as opposed to obligations arising from formal
written conventions and treaties``
The principle cannot be applied to override specific protections, or create exceptions to rules
where the text itself does not provide for one. As with the principle of necessity, the principle of
proportionality itself is to be found within the rules of IHL themselves. For example, direct
attacks against civilians are prohibited. A proportionality assessment is therefore not necessary
since any direct attack against even a single civilian would already be a clear violation of IHL.
Proportionality is only relevant when a military target is attacked.

The notion of necessity

A dominant notion within the framework of IHL is military necessity, often the principle which
clashes most with humanitarian protection. Military necessity permits armed forces to engage in
conduct even when such action will result in destruction and harm. The concept of military
necessity acknowledges that under the laws of war, winning the war or battle is a legitimate
consideration.

However, the concept of military necessity does not give the armed forces the freedom to ignore
humanitarian considerations altogether and do what they want. The principle must be interpreted
in the context of specific prohibitions and in accordance with the other principles of IHL.

It is important to note that the rules of IHL include the principle. For example, Article 52 of
Addition Protocol I lists objects that can be lawfully targeted. However, the notion cannot be
applied to override specific protections or create exceptions to rules where the text itself does not
provide for one.

The principle of humanity

The principle of humanity, and its absence during the battle of Solferino of 1859, was the
central notion that inspired the founder of the International Committee of the Red Cross (ICRC),
Henry Dunant. The principle stipulates that all humans have the capacity and ability to show
respect and care for all, even their enemies.

IHL, the principles of which can be found in all major religions and cultures, sets out only basic
protections, but demonstrates some common sense of and respect for humanity even during
armed conflict.

Modern IHL accepts that harm, destruction, and death can be lawful during armed conflict. The
law seeks to limit harm, and the principle of humanity is very much at the heart of this ambition.
Many rules of IHL are inspired by this notion, specifically those setting out protections for the
wounded and sick.
  Since Hugo Grotius’ De Jure Belli ac Pacis(On the Law of War and Peace
1625), the architecture of the international legal system has been
founded upon a distinction between the states of war and peace. At
the beginning of the 20th century, it was taken for granted that ‘the
law recognizes a state of peace and a state of war, but that it knows
nothing of an intermediate state which is neither one thing nor the
other’.1 Today, this claim stands to be revisited.

 Theorists distinguish between the rules of jus ad bellum and jus in

bello. The rules of jus ad bellum pertain to the circumstances under
which states can acceptably wage war, while the rules of jus in bello
serve as guidelines for fighting fairly once war has begun.

 JUS AD BELLUM (ON THE LEGALITY OF THE USE OF FORCE) is

that they had the right to make war
 AND JUS IN BELLO (ON THE HUMANITARIAN RULES TO BE
RESPECTED IN WARFARE) regulates the conduct of parties engaged in an
armed conflict
 Jus ad bellum is traditionally perceived as the body of law which
provides grounds justifying the transition from peace to armed force,
while jus in bello is deemed to define 'the conduct and responsibilities
of belligerent nations, neutral nations and individuals engaged in
armed conflict in relation to each other.

jus ad bellum and jus in bello by ICRC

Jus ad bellum refers to the conditions under which States may resort to war or to the use of
armed force in general. The prohibition against the use of force amongst States and the
exceptions to it (self-defense and UN authorization for the use of force), set out in the United
Nations Charter of 1945, are the core ingredients of jus ad bellum.3

Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous
with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and
assisting all victims of armed conflict to the greatest extent possible.

IHL applies to the belligerent parties irrespective of the reasons for the conflict or the justness of
the causes for which they are fighting. If it were otherwise, implementing the law would be
impossible, since every party would claim to be a victim of aggression. Moreover, IHL is
intended to protect victims of armed conflicts regardless of party affiliation. That is why jus in
bello must remain independent of jus ad bellum.

3
See the heading Use of Force Under International Law
IHL AND THE 'RESPONSIBILITY TO PROTECT'
The Global Centre for the Responsibility to Protect (GCR2P)was set up in 2008. it plays a major
role in developing and promoting the concept of the 'responsibility to protect' (R2P), which
it defines as follows:

"The responsibility to protect is a principle which seeks to ensure that the

international community never again fails to act in the face of genocide and other gross forms of
human rights abuse. "R2P," as it is commonly abbreviated, was adopted by heads of state
and government at the World Summit in 2005 sitting as the United Nations General
Assembly. The principle stipulates, first, that states have an obligation to protect their citizens
from mass atrocities; second, that the international community should assist them in doing
so; and, third, that, if the state in question fails to act appropriately, the responsibility to do
so falls to that larger community of states. R2P should be understood as a solemn promise made
by leaders of every country to all men and women endangered by mass atrocities."

The concept of R2P implies that if a State manifestly fails to comply with its obligation
to protect its population from four particular crimes – genocide, war crimes, ethnic
cleansing and crimes against humanity – the international community has a responsibility
to take joint action to protect the people in question. Such action can take various
forms: diplomacy, humanitarian measures or other peaceful means; it can also, as a last
resort, involve the use of force, but only after the UN Security Council's authorization.
Although R2P is referred to sometimes as an "emerging norm," it is not a binding legal
obligation committing the international community, but a political instrument.4

IHL provides no such basis for legalizing or legitimizing the resort to force in
international relations. Neither does it prohibit States from using force for
humanitarian purposes. The legality of the use of armed force in international
relations is determined solely under jus ad bellum. It should be noted, however,
that the rationale underlying R2P and the obligation to ensure respect for IHL are
akin, to the extent that they emphasize the international community's
responsibility to ensure respect for IHL and to prevent IHL violations,
including war crimes and other international crimes. The use of force in the R2P
context can also be regarded as one of the forms of joint action with the United

4
On October 18, the Global Centre for the Responsibility to Protect (GCR2P) published an open
letter calling for an immediate ceasefire in Israel’s war on Gaza, which has put the territory on
“the precipice of a humanitarian catastrophe”. Within a week, it was signed by more than 460
NGOs from all over the world.

Even before the latest Israeli war on Gaza, the GCR2P, which was founded in 2008 to promote
the doctrine of the Responsibility to Protect (R2P), issued five warnings this year about atrocities
being committed by Israel in the occupied Palestinian territories.
 Nations explicitly mentioned in Article 89 of Protocol I of 8 June 1977 additional
to the Geneva Conventions (Additional Protocol I), which states that "in situations
of serious violations of the Conventions or of this Protocol, the High Contracting
Parties undertake to act, jointly or individually, in cooperation with the United
Nations and in conformity with the United Nations Charter."

The ICRC, in accordance with the Fundamental Principle of neutrality, is neither

for nor against R2P military interventions. It expresses no opinion on the
measures undertaken by the international community to ensure respect for IHL.
There remains this crucial point however: any use of force on grounds of R2P
and/or of the obligation to ensure respect for IHL must comply with the relevant
obligations under IHL and human rights law. In other words, States or
international organizations taking part in armed conflicts within the context of an
R2P operation must respect IHL at all times.

A Features of jus ad bellum and jus in bello

One of the main achievements of the modern law of armed force is that it provides more than a
mere framework outlawing armed violence or setting limitations on the conduct of armed forces.
Contemporary rules of armed force do not contain only prohibitions for states and armed forces;
they channel armed violence and regulate the relations between different actors (military forces,
civilians, ousted government) in situations of armed conflict. However, the classical concepts of
jus ad bellum and jus in bello contain gaps with respect to the management of post-conflict
relations.

Concepts such as individual criminal responsibility or the ‘humanization’ of the conduct of

warfare were far less developed at the time, when the current rules of jus ad bellum and jus in
bello were originally conceived. The traditional rules of jus in bello are therefore only
partially equipped to address the problems arising in the context of peace-making and the
transition from armed conflict to peace. The classical rationale of jus in bello is to limit the
consequences of armed conflicts on non-combatants (including vulnerable groups such as
the wounded, women and children), property and the environment. Accordingly, jus in
bello provides only a fraction of principles governing the process of conflict termination,
including capitulations and armistices. Similarly, the principle of international criminal
responsibility for the commission of serious crimes is only partially covered by the Geneva Law.

The norms of international humanitarian law, by definition, apply only to a limited extent to the
period following the cessation of hostilities. Additional Protocol I provides that the application of
the Geneva Conventions and the Protocol will cease ‘on the general close of military operations’.
This moment is usually deemed to occur ‘when the last shot has been fired’. Only selected
provisions apply after the ‘cessation of active hostilities’. A ‘post-conflict’ duty, namely the
obligation to repatriate, is activated in a classical ‘wartime’ situation, namely before the close of
military operations, which marks the date of the termination of ‘armed conflict’. Moreover,
parts of the ‘law of war’, namely specific duties of the occupant under the laws of
occupation, continue to apply in a ‘peacetime’ situation, namely after the close of military
operations. The norms of international humanitarian law are therefore only to a limited
extent relevant to the broader process of building peace after conflict.

Secondly, there are doubts as to the extent to which it is desirable and feasible to extend the
applicability norms of ‘jus in bello’ to the process of peace-making. Following the Bulletin
of the Secretary-General on the observance of international humanitarian law by UN
forces, there is widespread agreement that UN peacekeepers are bound to observe
‘fundamental principles and rules of international humanitarian law’, although the UN is
not a party to the Hague or Geneva Conventions. However, it is unclear as to what extent
international humanitarian law can and should be used to regulate civilian activities
undertaken by such actors in the aftermath of the conflict, whether it be under the
umbrella of occupation, the United Nations, or within the framework of a multinational
administration. In these situations, the choices of international humanitarian law collide with
other frameworks such as international human rights law, which offers, in many ways, a more
modern and a more nuanced framework to address challenges of peace-building. International
human rights law regulates public authority directly from the perspective of individual and group
rights (human rights, minority rights, self-determination), whereas international humanitarian
law continues to view public authority, at least partly, through the lens of competing state
interests.

The law of occupation, the only branch of the jus in bello which deals explicitly with post-
conflict relations, is ill-suited to serve as a framework of administration. Both the Hague and the
Geneva law are conceived of as legal frameworks to address temporary power-vacuums after
conflict. Their focus lies on the maintenance of public security and order and the protection of
the interests of domestic actors. These requirements force occupying powers to exercise restraint
in the shaping of the law and institutions of occupied territories. The examples of post-war
Germany and Japan have shown that the needs and dynamics of processes of post-conflict
reconstruction are difficult to reconcile with the provisions of the law of occupation stricto
sensu.

The limitations of the law of occupation again became apparent in the case of the occupation of
Iraq. In this case, the Security Council invented a new model of multilateral occupation, which
merged the structures of belligerent occupation with elements of peace-making under Chapter
VII, in order to facilitate reconstruction under the umbrella of collective security. This model
produced more questions than answers. Security Council Resolution 1483 embodied some
modern principles of international law into the framework of the occupation. However, the
reference of the Council to two parallel legal regimes, namely the continued application of the
law of occupation on the one hand, and principles of state-building on the other, left the limits of
reconstruction in a legal limbo. Some measures of the Coalition Provisional Authority (CPA),
such as the creation of the Iraqi Special Tribunal or the reform of the Iraqi private sector,
remained doubtful from a legal perspective.
These examples confirm that the contemporary jus ad bellum and jus in bello are based on
related, but partly distinct, rationales or foundations from the process of peacemaking. It
therefore makes some sense to argue that the period of transition from conflict deserves an
autonomous legal space in the architecture of the law of armed force.

Use of Force Under International Law

ON THE PROHIBITION AGAINST WAR
Until the end of the First World War, resorting to the use of armed force was
regarded not as an illegal act but as an acceptable way of settling disputes.

In 1919, the Covenant of the League of Nations and, in 1928, the Treaty of Paris
(the Briand-Kellogg Pact) sought to outlaw war. The adoption of the United
Nations Charter in 1945 confirmed the trend: "The members of the Organization
shall abstain, in their international relations, from resorting to the threat or use of
force ..."

One of the most important principles of international law is the prohibition against the use of
force. This rule is codified in Article 2(4) of the United Nations Charter. Article 2(4) provides
that a UN member state cannot threaten or use force against the territorial integrity or political
independence of another state, or in any way that diverges from the purposes of the UN.
Although Article 2(4) does not use “armed” or a similar word, most theorists believe that it only
prohibits military force, excluding non-military forms of coercion such as economic sanctions or
cyberattacks. Other provisions of the UN Charter might cover non-military forms of coercion.

The distinction between internal and international conflicts is not always clear.

As Article 2(4) implies, the prohibition against the use of force does not cover all situations. A
sovereign state likely can use force within its territory to protect its integrity. States have
substantial discretion in managing their internal affairs. Some theorists also believe that a
state may be able to use force outside its territory in situations that do not affect the
integrity or independence of another state. These situations might include force used for
humanitarian purposes or to protect citizens of the intervening state who are living abroad.
However, the UN Charter does not acknowledge these situations as exceptions to the
prohibition against the use of force. Many members of the international community feel that
states cite these justifications to hide improper motives.

The Use of Force in Self-Defense

Article 51 of the UN Charter acknowledges self-defense as an exception to the prohibition
against the use of force. This provision explicitly allows a state to use force in response to an
armed attack by another state. UN members must report actions taken in self-defense to the UN
Security Council. Article 51 has been interpreted to incorporate the inherent rules of self-defense
under customary international law, which provide that self-defense must be necessary and
proportionate to the aggression.

When a state faces an imminent attack, it may have a right to act in anticipatory self-defense.
Article 51 and other provisions of the UN Charter do not address this situation. However,
customary international law recognizes the right of anticipatory self-defense when an armed
attack is imminent and inevitable. If an attack is possible but not imminent, a state probably
cannot launch a pre-emptive strike.

Use of Force Against Former Enemy States

Article 107 of the UN Charter provides that a UN member state may use force against a state
that was an enemy state of a UN member during the Second World War if it believes that the
former enemy state is renewing a policy of aggression. This provision has become obsolete,
though, since all former enemy states have become members of the UN.

Collective Force Authorized by the UN Security Council (The UN Security Council, acting
on the basis of Chapter VII of the Charter)

Articles 24 and 25 of the UN Charter permit the UN Security Council to use collective force
against a threat to international peace and security. For example, the Security Council triggered
this power in the early stages of the Korean War and during the Iraq invasion of Kuwait in 1990.
The Security Council rarely invokes this power, though, and prefers to exert its authority
through economic sanctions or other non-military measures. Each of the five permanent
members of the Security Council holds a veto power, and they usually do not share the same
perspective on any given international conflict.

The Security Council sometimes has authorized the use of force in humanitarian missions that do
not involve overtly taking sides between states. For example, it mobilized a United Nations
Protection Force (UNPROFOR) for a peacekeeping operation during the turmoil that resulted
from the breakdown of the former Yugoslavia. At various points during the operation,
UNPROFOR was authorized to use force for humanitarian purposes.

Kinds of Conflict

In order for IHL to apply to a situation of violence, that situation must constitute an armed
conflict. As different sets of rules apply to international and non-international armed conflicts, it
is also important to identify the nature of the conflict. The entirety of the four Geneva
Conventions, as well as the rules of Additional Protocol I apply to international armed conflicts,
while Article 3 Common to the four Geneva Conventions and Additional Protocol II apply to
non-international armed conflicts.

Article 2 Common to the Geneva Conventions defines international armed conflicts as ‘all
cases of declared war or of any other armed conflict which may arise between two or more
of the High Contracting Parties.’ Therefore, all conflicts occurring between two States are
international in character. Non-international armed conflicts are, under Article 3 Common to the
Geneva Conventions, those conflicts that are ‘not of an international character’.

Therefore, the key distinction between the two types of conflicts appears to be the parties
involved in the conflict. Hence, if the armed conflicts between two or more States, it will be
classified as international, whereas if one of the parties is non-State in character, it will be
classified as non-international.

Defining international armed conflict

The basic requirement for an IAC is that there must be an armed conflict between two or more
states. Common Article 2 of the Geneva Conventions sets out the commonly accepted definition
of an IAC:

In addition to the provisions which shall be implemented in peace-time, 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 recognised 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.

Aside from occupation, where there needs to be no armed resistance, the level of violence
needed between two states to amount to a situation of armed conflict is generally undefined.
However, it is generally accepted that even “two shots” fired across a border could lead to the
application of IHL.

The threshold of violence is a question of practical relevance. For example, if during a training
exercise an army patrol accidently went into the territory of another state and returned without
any engagement with the other state, IHL would have no role to play. However, if that mistake
led to an exchange of fire between the two armed forces, the applicable rules of IHL would
apply.

It is important to note that the rules on international armed conflicts are more extensive and more
detailed than those covering internal armed conflicts, given that they include those set out in the
Hague Conventions of 1907, the four Geneva Conventions and the First Additional Protocol to
the Geneva Conventions of 1977.
Occupation
Occupation is a concept that only applies in the context of an IAC. Occupation is not defined in
the 1949 Geneva Conventions. However, the 1907 Hague Convention IV sets out the following
definition: “Territory is considered occupied when it is actually placed under the authority of the
hostile army. The occupation extends only to the territory where such authority has been
established and can be exercised.”

Defining non-international armed conflicts

The majority of today’s armed conflicts are non-international armed conflicts. The reluctance of
states to accept international legal oversight into their internal affairs often means that the
threshold of violence and organisation required to define a situation as an armed conflict is
significantly higher than what would be needed for a IAC.

Common Article 3 tells us what does not qualify as an armed conflict, namely internal
disturbances or tensions. Internal disturbances are riots, demonstrations, and isolated, sporadic
acts of violence that take place inside the territory of a state.

Case law, especially by the International Criminal Tribunal for the Former Yugoslavia (ICTY),
has clarified the elements of a NIAC. This allows for the assertion that a non-international armed
conflict exists when there is a situation of protracted armed violence between governmental
authorities and organized armed groups, or between such groups within a state.

Hence, there are two key elements needed for a NIAC: protracted armed violence, and the
involvement of an organised armed group. In the case of Haradinaj, the tribunal set out some
possible factual indicators to help assessing if a NIAC exists.