The law governing armed conflicts
Dear PAO,
Do we have a law governing international armed conflicts? The reason for this question is the ongoing war between Russia and Ukraine. As can be seen in some social media platforms, it appears that there are a handful of direct attacks and bombings that appear indiscriminate and incapable of distinguishing a civilian from the military. As such, I wish to be informed if there is any law sanctioning these barbaric acts?
JB
Dear JB,
The answer to your question is yes and the basis for such finds support in the Geneva Convention of 1949 and the latter’s related Protocols. These Convention and Protocols later developed as International Customary Laws and formed part of our Public International Law. This international law governing armed conflicts (previously referred to as the Laws of War) is currently termed as the International Humanitarian Law or IHL.
The IHL is a set of rules which seeks, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. That is why in essence, this law seeks to preserve a measure of humanity with the guiding principle that even in times of war, there are limits.
Nonetheless, it must be noted that the IHL only applies to cases of declared war or any armed conflict which arises between two or more of the highest contracting parties. It does not cover internal tensions or disturbances such as isolated acts of violence.
Succinctly, once classified as an international armed conflict, the IHL applies even if the state of war is not recognized by one of the parties. Therewithal, the law applies equally to all sides regardless of who commenced the fighting, viz:
“Convention. Geneva, 12 August 1949.
“Article 2. In addition to the provisions which shall be implemented in peacetime, 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 recognized by one of them.xx x.” (Emphasis and underscoring supplied)
Proceeding to your subsequent question, please be advised of the following guiding principles found in Articles 35, 48, 51 and 57 of Protocol I in relation to the 1949 Geneva Convention:
“Article 35 – Basic rules 1. In any armed conflict, the right of the Parties to the conflict to choose methods or
means of warfare is not unlimited.Xxx “Article 48
– Basic rule. In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
“Article 51 – Protection of the civilian population- 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. X x x 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. X x x 4. Indiscriminate attacks are prohibited.xxx
“Article 57 – Precautions in attack 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. x x x” (Emphasis and underscoring supplied)
In sum, the foregoing dictates the principle of distinction which requires parties to a war to differentiate between the civilian population and combatants. In this relation, parties to a war are prohibited from employing means and methods that cause superfluous injury or incapable of distinguishing an army from a civilian.
Thus, given that both Russia (withdrew from Additional Protocol I in 2019) and Ukraine ratified the said Convention and Protocols, both States are bound to observe the same in their ongoing war. Besides, given the almost universal application and recognition of these treaties, the latter is considered as having a customary law status.
We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.