International and internal conflicts
- Related Topics:
- war crime
- prisoner of war
- just war
- neutrality
- contraband
Regional action
Chapter VIII of the UN Charter permits the existence of regional arrangements or agencies for dealing with such matters of international peace and security as are appropriate for regional action. It goes on to provide, in article 53, that no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council. Article 54 states that the Security Council shall be kept informed of all such activities. On a number of occasions, states have justified the use of force (or the threat of force) under this part of the Charter, despite the lack of prior authorization from the Security Council, by arguing that the measures they took did not amount to enforcement action and therefore did not require the authorization of the Security Council. Thus, the United States, after stopping ships on the high seas in 1962 to search them for missiles or missile parts intended for Cuba, argued that this was not enforcement action since the regional arrangement (in this case, the Organization of American States) had merely made a recommendation to member states and had not rendered a decision that had to be enforced. A similar argument was used following the Grenada incident: this action, the United States declared, was not directed against a government but was merely carried out to restore law and order to the island under the aegis of the Organization of Eastern Caribbean States.
War by proxy
Armed conflict need not be, and often is not, of the traditional type—that is, a conflict between regular armed forces in the territory of one or more states. Nicaragua v. United States showed that an armed attack (which would give the attacked state the right to act in self-defense) must be understood as “including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to an actual armed attack conducted by regular forces, or its substantial involvement therein.” Therefore, if a state sent an armed band into another state to depose its rulers or to attack civilians of that state, then the sending state would have committed an armed attack, giving the attacked state the right to act in self-defense. As discussed above, the response must be proportionate to the aggression; in assessing this, the accumulation of events may be taken into account.
Civil war
The term civil war, although perhaps dated, is used here to mean a noninternational armed conflict. It therefore covers any internal conflict, whatever the motive for the fighting.
It is often difficult to determine whether a conflict is truly internal or international, since other states may be involved to some extent. If it is indeed an international armed conflict, then an attacked state may seek the military assistance of any other state, which will then be acting in collective self-defense with it. (An example of this was the Vietnam War, although, it should be said, many states regarded it as a civil war.) Also, if the conflict has become international, then the 1949 Geneva Conventions and the whole of the body of the laws of war will apply to the combatants as well as to civilians caught up in the conflict. Should the war be a civil one (which can properly be described as an armed conflict), international law would point to the nonintervention of other states, and only article 3 of each of the 1949 Geneva Conventions would apply (protecting only those not taking an active part in the hostilities). Further protection is given (mainly to those who do not take part in the conflict) by the second Protocol of 1977, which applies to civil wars in which dissident armed forces, under responsible command, exercise such control over a part of the territory of a contracting state as to enable them to carry out sustained and concerted military operations and to implement the Protocol. For these reasons, the Protocol would not apply to the conflicts in Northern Ireland or Spain, in which neither the Irish Republican Army nor the Basque separatists controlled any territory, while it would apply in the conflict in El Salvador, in which rebels controlled sizable areas of the countryside.
War of national liberation
The first Protocol of 1977 provides that peoples fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination are to be treated as if they were engaged in an international armed conflict and not a civil war. There is considerable difficulty over the meaning of this phrase, and it may be difficult to apply in practice.
Conducting hostilities
Although the Hague Conventions, concerning the conduct of hostilities, apply to the states that are party to them in the event of war, the various Geneva Conventions of 1949 (and the 1977 Protocols to them) come into operation where there is an armed conflict between two or more contracting parties even if a state of war is not recognized by one (or both) of them. They also apply to the occupation of another state’s territory even if the occupation meets with no armed resistance. Since much of the Hague Conventions reflect customary international law, it can be assumed that these laws of war (or the jus in bello) also apply whether or not any declarations of war exist. In considering the legal conduct of a conflict, the laws of war take no account of its causes. This means that the combatants of the aggressor nation are owed the same rights as those of the attacked state.
The controls placed on the actual methods and means of war are to a large extent based on the Hague Conventions, but there are also a number of important provisions in the first Protocol of 1977, the 1954 Hague Convention on cultural property, and the 1981 Conventional Weapons Convention.
Lawful combatants
Those who may lawfully take part in hostilities are those who would be entitled to prisoner-of-war status if captured. Any other person taking part in a conflict may be treated as an unprivileged belligerent, or a franc-tireur, and he may be punished if captured. Article 4 of the third Geneva Convention of 1949 and article 43 of the first Protocol of 1977 provide that a lawful combatant is generally a member of the armed forces of a state. The term also includes members of the merchant marine and inhabitants of unoccupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces until the territory has been occupied.
A spy is in a unique position, since he is often a member of the armed forces of a state; but if he acts in disguise in the zone of operations of an enemy in order to obtain information to pass on to his own forces, he may be punished provided he has a trial.
A mercenary is not protected at all; he has the right to be neither a combatant nor a prisoner of war. A mercenary is defined in the first Protocol of 1977 (which neither the United Kingdom nor the United States has ratified) as a person who is specially recruited to take part in a conflict, who is motivated essentially by private gain, and who is paid substantially more than the ordinary armed forces of the state to which he has been recruited. He must not be a national of the recruiting state or a member of the armed forces of a party to the conflict.
Guerrilla fighters are not solely a modern phenomenon, although during and after World War II they became a common feature of armed conflicts, especially those occurring in the developing world. The third Geneva Convention of 1949 required what is called an organized resistance movement to possess four characteristics before its members could be treated as prisoners of war upon capture. These were: (1) being commanded by a person responsible for his subordinates, (2) having a fixed and distinctive sign recognizable at a distance, (3) carrying arms openly, and (4) conducting operations in accordance with the laws and customs of war. In time, it became apparent that two of these four conditions were difficult for guerrilla fighters to meet. Were guerrillas to wear a fixed and distinctive sign recognizable at a distance or carry arms openly, they could hardly operate with any safety in occupied territory. The first Protocol of 1977 made a number of important changes that bind those states that are parties to it. For example, one of the major problems with recognizing guerrilla fighters as lawful combatants is that they may not, in fact, distinguish themselves from the civilian population—in which case, all civilians are placed at risk. Therefore, article 43 of the Protocol requires all combatants to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. However, even if a combatant does not do this, he will still be entitled to treatment as a lawful combatant if he carries his arms openly during each military engagement and during such time as he is visible to the adversary while engaged in a military deployment preceding the launching of an attack in which he is to participate.
A member of the armed forces of a party to a conflict will lose his status as a prisoner of war upon capture if he commits an act of hostility while wearing civilian clothes. In the case of Osman Bin Mohammed v. Public Prosecutor (1968), the Privy Council in London held that members of the Indonesian armed forces who had landed in Singapore during an armed conflict between Indonesia and Malaysia were not entitled to be treated as prisoners of war after having placed a bomb in a civilian building that caused the deaths of civilians. This loss of prisoner status will also apply, among the states that are parties to the first Protocol of 1977, if their combatants do not at least carry their arms openly, as described above.
