Search

This chapter examines those parts of international law that regulate how military operations must be conducted—jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies and Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 concerns belligerent occupation and Section 14.7. deals with the regulation of non-international armed conflict. Finally, Section 14.8 explores the relationship between international humanitarian law and human rights law in times of armed conflict.

This chapter evaluates legal developments and practice with respect to armed conflict at sea. The Third United Nations Conference on the Law of the Sea has progressively developed the law and contributed to the emergence of multiple differing regimes, some of which are now customary in character. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995) provides a contemporary restatement of the law of armed conflict at sea, together with some progressive development. The chapter provides an overview of the different acts of naval warfare, comments on special provisions concerning means and methods of naval warfare, and explains the legal status of hospital ships including conditions of their protection.

Prior to the progressive development of the law of armed conflict (LOAC) heralded by the 1949 Geneva conventions—most particularly in relation to the concepts of international and non-international armed conflict—the customary doctrine on recognition of belligerency functioned for almost 200 years as the definitive legal scheme for differentiating internal conflict from ‘civil wars’ in which the law of war as applicable between states applied de jure. Employing a legal historical approach, this book describes the thematic and schematic fundamentals of the doctrine, and analyses some of the more significant challenges to its application. In doing so, the book assesses whether, how, and why the doctrine on recognition of belligerency was considered ‘fit for purpose’, and seeks to inform debate as to its continuity and utility within the modern scheme of LOAC.

This chapter assesses the law of armed conflict. The right to resort to armed force, known as ‘jus ad bellum’, is a body of law that addresses the permissibility of entering into war in the first place. Despite the restrictions imposed by this body of law, it is clear that international law does not fully forbid the use of force, and instances of armed disputes between and within States continue to exist. Consequently, a second, older body of law exists called ‘jus in bello’, or the law of armed conflict, which has sought to restrain, or at least to regulate, the actual conduct of hostilities. The basic imperative of this body of law has been to restrict warfare in order to account for humanitarian principles by prohibiting certain types of weapons, or protecting certain categories of persons, such as wounded combatants, prisoners of war, or the civilian population.

This is a pre-copyedited, author-produced version of an article accepted for publication in Journal of Conflict & Security Law following peer review. The version of record Antal Berkes, The Standard of ‘Due Diligence’ as a Result of Interchange between the Law of Armed Conflict and General International Law, Journal of Conflict and Security Law, Volume 23, Issue 3, Winter 2018, Pages 433–460 is available online at: https://doi.org/10.1093/jcsl/kry022

The international law of armed conflict (also known as international humanitarian law or the law of war) regulates the conduct of hostilities—including the use of weaponry—and the protection of victims in situations of both international and non-international armed conflict. Rooted in customary law, often of very great antiquity, since the late nineteenth century it has become one of the most intensively codified areas of international law. This chapter outlines the scope of application of the law; issues of personal status (combatants and civilians); the conduct of hostilities (methods and means of warfare, including choice of weapons and targeting operations); the protection of victims (sick, wounded, shipwrecked, prisoners of war, and civilians); and various ways of securing the law’s implementation and enforcement.

The doctrine of Kriegsraison, and its argument that ‘necessity knows no law’, is generally considered to have been laid to rest with the creation of the 1949 Geneva Conventions. However, this article asserts that Kriegsraison is resurrected and wholly alive in the USAs’ targeted killing programme. The targeted killing programme, now in existence for more than 15 years, remains one of the most problematic aspects of US anti-terror policy and continues to raise numerous legal questions. The article argues that treatment of the various legal frameworks relevant to targeted killing by the USA is suffused with Kriegsraison to such an extent that necessity, in its varying iterations, has become the primary guiding principle for US uses of force, and assessments as to their legality. This argument is predicated on an examination of the USAs’ expansive interpretation of jus ad bellum principles, its a-la-carte approach in recognising the applicability of jus in bello rules, and the designation of regions in which it uses force as lying ‘outside the area of active hostilities’. Throughout this assessment, parallels are drawn between the conduct of the USA today and between that of WWI-era Germany, which was characterised by Kriegsraison’s pervasive influence. Finally, the article contends that the use of armed drones as the primary tool for carrying out the targeted killing programme must be scrutinised, as this is vital to understanding the practical implementation of the Kriegsraison doctrine.

This chapter describes the history of the law of armed conflict and its relevance to women. The law of armed conflict has not been heavily scrutinized by feminists but its provisions offer feminists many challenges. This chapter explores how, despite theoretically seeming to benefit women, these provisions from assumptions around combatancy status to civilian protection depict a gendered vision of women, reinforce destructive gender stereotypes, and fail to address systemic gender discrimination. The chapter concludes by exploring feminist encounters with the law of armed conflict and the extent to which protections for women in situations of armed conflict have improved over time. It also describes challenges that lie ahead and provides suggestions for feminist scholarship to probe further.

This chapter examines UN Security Council practice with respect to the use of force in no-fly zones and maritime exclusion zones. It considers whether the law governing the zone is based or not based on the law of armed conflict (LOAC) and whether the law on the use of force inside the zone is essentially the same as that outside it. It also assesses the effect of the Security Council’s act of declaring or acquiescing in the zone on the law that is normally applicable in the ocean or airspace enclosed by the zone. The chapter also analyses whether the Security Council can authorize the use of lethal force for the purpose of enforcing a mandate despite the absence of LOAC authorization. It discusses the notion of a ‘third paradigm’ for use of lethal force and the concept of ‘self-defence’ endorsed by the Security Council (and the UN more generally).

The conditions required for the application of international humanitarian law to an internal (non-international) armed conflict: existence of open hostilities between the "parties to the conflict", i.e., regular armed forces or governmental armed forces and non State forces or non State forces between themselves if these non State forces are organized, identifiable and liable/responsible for their acts.

Introduction 1. The Evolution of Armed Conflict in the Twentieth Century and the International Legal Response - Towards Convergence 2. Combatant Status and Prisoner of War Protections 3. Existing Protections for Participants in Non-International Armed Conflict 4. Completing the Picture: International Human Rights Law in Non-International Armed Conflicts 5. Achieving a Universal Combatant Status Conclusions Bibliography Index