dispositions, adopted in 1899 and 1907.
Over the centuries, many nations started to have the conviction that Law must impose itself in the sphere of conflicts, in order to limit its most disastrous effects. The development of new ways of communication, of weapons of mass destruction and weaponry even more sophisticated had led to a world consciousness about inhumane and sanguinolent characteristics of contemporaneous conflicts.
This consciousness had a notorious evolution from the XIX Century, with the practice of coalitions, capitulations and armistice conventions. These evolutions, aimed to humanize the treatment of the victims of the conflict, were born from consuetudinary rules, revealing the development of some combating ethics.
A valid process of construction of international legal norms has started during the second half of the XIX Century, with the efforts of Henri Dunant in Europe, who witnessed the cruel battle of Solferino, and after idealized the First Geneva Convention, in 1864, and Francis Lieber, who wrote the first promulgated code about this subject, by the government of the United States of America during the Secession Civil War.
During the XX Century, this evolution took place with the Geneva Conventions in 1906 and Hague Conventions in 1899 and 1907. By codifying a legal framework that was at the time part of international consuetudinary law, these Conventions show the beginning of a humanitarian law to protect victims and a law concerning war, to limit the combatant’s actions.
The International Humanitarian Law and the Law of War evolved and were granted some efficiency, but First World War has shown, for the first time, the incomplete characteristic of these norms, and the difficulties for its implementation by States. New conventional tools tried to fill the lacunes of a legal framework that does not protect satisfactorily. Second World War, on its turn, put in evidence the need for a complete set of rules that guarantee the protection of the victims of war more efficiently. This was the contribution of the Four Geneva Conventions, at August 12th, 1949, which constitute nowadays the foundation of Humanitarian Law. These Conventions were highlighted in the trials of Nuremberg and Tokyo, where for the first time accused of war crimes were condemned.
During the second half of the XXth Century there was an increase in the field of applicability of the LoAC, inside an international community whose functioning is based on the Charter of the United Nations. The LoAC contains aspects from the protection of cultural properties, natural environment, the participation of children in armed conflicts, or the prohibition of certain weapons, considered inhumane or that cause excessive suffer.
In parallel, the physiognomy of the armed conflict was largely modified. Internal conflicts brought new non-State actors (like terrorist organizations), creating multiple international repercussions, and at the same time peacekeeping and peace enforcement operations are even more common after the end of the Cold War.
The International Law of Armed Conflict is a specific branch of Public International Law, and has three different domains.
The Law of War, also known as the “Hague Law”, regroups the normative framework of the Hague Conventions, from whom the most known are those promulgated at October 18th, 1907; one is about the law and practices of land warfare, and another about naval warfare. These texts are designed to protect the combatant from the most horrible effects of war, and they define some rules applicable to combat, like the prohibition of perfidy or to declare that there will be no prisoners (give no quarter). The rules derived from them are intended to protect certain rights that are also threatened, like the Hague Convention at May 14th, 1954, concerning the protection of cultural properties.
International Humanitarian Law encompasses the framework made by the Geneva Conventions of August 12th, 1949, about the Wounded and sick (First), the Shipwrecked (Second), the Prisoners of War (Third) and the Civil population (Fourth). These Four Conventions are intended to protect the victims of war, in other words, the combatants hors de combat and the civilian population that suffers from the horrid effects of conflicts. From the beginning of the XXth Century, the proportion of civilian victims of wars is much higher than military victims.
In the division between the Law of War and Humanitarian Law there is a combined law, which includes elements of both branches. They are the two Additional Protocols to the Geneva Conventions, adopted in June 8th, 1977, in Geneva.
The Law of Arms Control gathers the international conventions that prohibit, limit or regulate the use of certain weapons and ammunitions. It prohibits chemical and biological weapons, anti-personal mines, hollow-point projects (“dum dum” bullets), weapons with projectiles not detectable by X-rays, blinding lasers, among others. The use of incendiary weapons, for its turn, is regulated and limited to the exclusive attack of military objectives away from a civilian concentration. In the same manner, the use of mines that are not anti-personal is still authorized, but only if all precautions are taken to protect civilians from its effects, including after the conflict.
The Law of Arms Control completes the international instruments concerning disarmament, like the Nuclear Weapons Non-Proliferation Treaty, treaty FCE (Forces Conventionnelles en Europe) or START (Strategic Arms Reduction Treaty) and SALT (Strategic Arms Limitations Talks). These instruments are parallel to the Arms Control, for they both aim a progressive reduction of certain weapons, until its total disappearance, because the subject Arms Control is more than the prohibition of certain weapons.
It is during an Armed Conflict that the sovereign power of a State manifests mostly its strength. In this meaning, some States do not hesitate to privilege military efficiency in detriment to legal rules. On the contrary, the respect of the Law of Armed Conflict permits the execution of military operations, limiting the inhumane effects of war. This is an essential condition for avoiding the occurrence of the vicious circle of barbarism.
The framework of the Law of Armed Conflict, although imperfect, constitutes a valuable protection, for the Armed Forces and also for the civilian population. They allow the solution, or the attempt for a solution, of situations that are difficult, complex or ambiguous, which characterize all armed conflicts. They delimit the action of the Armed Forces, contributing for the country’s image in the occasion of an external intervention.
The Law of Armed Conflict is applicable to every armed conflict. This may be international, when it occurs between two sovereign States, or non-international, whose plus frequent example is the civil war. Non-International Armed Conflicts must be differentiated from situations of Internal Tension, insurrections and other analogous acts of violence, which are not considered conflicts.
Such distinction is important because from it derives the legal framework that is applicable to each circumstance. Thus, concerning International Humanitarian Law, a Non-International Armed Conflict is regulated by Additional Protocol II to the Geneva Conventions. On the other side, in an International Armed Conflict the warring parties must comply with the Four Geneva Conventions and Additional Protocol I. The applicable rules to International Armed Conflicts are broader and more protective than Non-International Armed Conflicts.
The core of the fundamental rights of the human being is applicable to every situation, even outside a conflict, and independent of its character, international or not. It is the 3rd common article to the Geneva Conventions, which define the basic rules for the protection of the human being, and also the legal framework of Human Rights, that list three important principles:
- Inviolability, that guarantees to every person and every combatant the right for the respect of his life and his physical and moral integrity;
- Non discrimination, so every person is treated without distinction of race, gender, nationality, political opinion or religion (this principle of Human Rights is different than the Principle of Discrimination, specific for International Humanitarian Law, explained below);
- Certainty, so the individual is not held responsible for something he/she did not commit, through the needed judicial guarantees and the prohibition of r
eprisals, collective punishments, hostage taking and deportations.
The rules of International Humanitarian Law are aimed to protect the combatants in an armed conflict, but also the sick, wounded, shipwrecked, health and religious personnel, prisoners of war, war correspondents, diplomats, humanitarian organizations and civil protection agents, refugees and, as a whole, the civilian population affected by a situation of an armed conflict, especially women and children.
The main principles of International Humanitarian Law are:
- Humanity, that lies in the desire to avoid, through all available measures, superfluous damage and suffer caused by the use of force. In this way, the choice of methods and means of warfare is not unlimited, but it must respect LoAC rules that limit the pernicious effects of the use of violence. The Martens Clause (This Clause has been created by the Estonian jurist Frédéric de Martens, and is part of a number of international conventions) disposes that: “The civilian population and the combatant remain under the protection of the Droit des Gens (Jus gentium, or International Law), the rules resulted from established customs, the principles of humanity and the requirements of public consciousness”. The
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