Public Law Lecture 9

Law of War
 Law of War

dealing with the inception, conduct, and termination of

warfare. Its aim is to limit the suffering caused to
combatants and, more particularly, to those who may
be described as the victims of war—that is, non-
combatant civilians and those no longer able to take
part in hostilities. 
Abu Bakr’s instruction to Osama Bin
Zayd

Stop, O people, that I may give you ten rules for your
guidance in the battlefield. Do not commit treachery or
deviate from the right path. You must not mutilate dead
bodies. Neither kill a child, nor a woman, nor an aged
man. Bring no harm to the trees, nor burn them with
fire, especially those which are fruitful. Slay not any of
the enemy's flock, save for your food. You are likely to
pass by people who have devoted their lives to
monastic services; leave them alone
 De Jure Belli ac Pacis

If civilians were to enjoy any protection, it would also

become necessary clearly to distinguish them from the
combatants. This could come only with the
development of a professional army wearing a
distinctive uniform and taking upon itself a code 
 War seen as an integral part of
state sovereignty

attempts to distinguish wars that were considered

“just” from those which were “unjust.”

This was a Christian doctrine formulated by, among

others, St. Augustine

As a corollary, the enemy state would therefore be

fighting an unjust war
 Principles of the laws of war

Military necessity: an attack or action must be intended to

help in the defeat of the enemy; it must be an attack on
a legitimate military objective.
Distinction :belligerents must distinguish
between combatants and civilians.
Proportionality:  belligerents must make sure that the harm
caused to civilians or civilian property is not excessive in
relation to the concrete and direct military advantage
expected by an attack on a legitimate military objective
 Rules of Engagement

Standing ROE

War-time ROE

https://www.britannica.com/topic/rules-of-engagement-
military-directives
 Declaration of war

a formal act by which one state goes to war against

another. The declaration is a performative speech
act (or the signing of a document) by an authorized
party of a national government, in order to create
a state of war between two or more states.
Declaration for Ending War

Arab–
Israeli
War (1948 Egypt: 26
March
–49)
Suez 1979
Jordan: 26
Crisis (195  Egypt October
6) 15 May declaratio  Jordan 1994
Six-Day  Syria  Israel
War (1967) 1948 n of war  Iraq Syria: still
at war
War of  Lebanon Iraq: still
Attrition (1
at war
967–70)  Lebanon: s
Yom
Kippur till at war
War (1973)
Lawful conduct of belligerent actors

1864: Geneva Convention & Red Cross to protect sick &

wounded soldiers

1899 Hague conventions: prohibiting expanding (dum-

dum) bullets
 2nd Hague Convention of 1907

Produced 13 treaties:
Settlement of International Disputes
 Opening of Hostilities
 Laws and Customs of War on Land
 Rights and Duties of Neutral Powers and Persons in case of
War on Land
Position of Enemy Merchant Ships at the Start of Hostilities
Laying of Automatic Submarine Contact Mines
Exercise of the Right of Capture in Naval War
 Aggression

The Security Council of the UN is empowered by article

39 of the Charter to determine the existence of any
threat to the peace, breach of the peace, or act of
aggression. It may make recommendations or decide
what measures (including the use of armed force) shall
be taken. In practice, the Security Council often is
unable to act because of the veto power possessed by
its permanent members
1974 General Assembly Resolutions

 General Assembly Resolution 3314 defined and gave

some examples of aggression. Article 3 gave, as
examples, invasion or attack by armed forces of a state,
military occupation, bombardment against the territory
of another state, blockade of ports or coasts, action of a
state in allowing its territory to be used for preparing an
act of aggression against a third state, and the sending
of armed bands, groups, irregulars, or mercenaries to
carry out acts of armed force against another state. 
 Non-Aggression

Article 2 of UN Charter about non-aggression…

(3) All Members shall settle their international disputes
by peaceful means in such a manner that international
peace and security, and justice, are not endangered.
(4) All Members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of
the United Nations.
 Right of Self-Defence

Article 51 of UN Charter: Nothing in the present Charter

shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a
Member of the United Nations, until the Security
Council has taken measures necessary to maintain
international peace and security….
The Republic of Nicaragua v. The United
States of America (1986) ICJ 1

“Armed Attack”: Irregular forces, Guerrilla tactics

Non-conventional war included?
Right of Self-defence triggered?
“No rule permitting the exercise of collective self-
defence in the absence of a request by the State which
regards itself as the victim of an armed attack.”
 Collective Self Defence

Iraq & Kuwait war in 1991

SC Resolution 661
Collective Self-defence is valid protection for weak
states

1966 US invasion of South Vietnam against Communist

forces
 Humanitarian Intervention

To stop war-crimes, refugee crisis, displaced persons etc

Attack by India on Pakistan on 1971

NATO intervention in Bosnia & Kosovo by bombing

Serbia in ‘90’s
Intervention to rescue nationals

Operation Eagle Claw in 1980 against Iran

Israeli operation in Entebbe Uganda in 1976

Russian war against Georgia in 2008

 Responsibility to protect

International Commission on Intervention and State

Sovereignty: Other states have responsibility to
intervene where:
(a) A state cannot fulfil its own responsibility towards
its citizens
(b) State itself is perpetrator of war-crimes / atrocities
(c) Another state is threatened by actions taking place
inside state
 Authorizing Use of Force

UN Security Council does not recognize

(a) Annexation of territory by force

(b) Treaties which are signed by use of force
Article 24
In order to ensure prompt and effective action by the United
Nations, its Members confer on the Security Council primary
responsibility for the maintenance of international peace
and security
 Peacekeeping

Peacekeeping refers to activities intended to create

conditions that favour lasting peace. Research generally
finds that peacekeeping reduces civilian and battlefield
deaths and reduces the risk of renewed warfare.
The UN peacekeepers (often referred to as Blue
Berets or Blue Helmets because of their light
blue berets or helmets) can include
soldiers, police officers, and civilian personnel
 Types of Missions

Observation Missions 
Interpositional Missions
Multidimensional missions
Peace enforcement Missions
 Non-UN Missions

Multinational Forces
African Union
ISAF in Afghanistan
 Criticisms

Human Trafficking

Forced Prostitution

Child Sexual Abuse

https://
www.aljazeera.com/indepth/features/2017/08/peacekee
pers-rape-full-report-170804134221292.html
 UN Law: Chapter VI missions

Chapter VI missions are consent based, therefore they

require the consent of the belligerent factions involved
in order to operate. Should they lose that consent,
Peacekeepers would be compelled to withdraw.
Articles 33 to 38 of UN Charter.
 Chapter VII missions

Chapter VII missions, by contrast, do not require

consent, though they may have it. If consent is lost at
any point, Chapter VII missions would not be required to
withdraw.
Determination Prior to use of force

Article 39
The Security Council shall determine the existence of
any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide
what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international
peace and security.
 Provisional Measures

Article 40
In order to prevent an aggravation of the situation, the
Security Council may, before making the
recommendations or deciding upon the measures
provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as
it deems necessary or desirable. 
 Non-Forcible Measures

Article 41
The Security Council may decide what measures not
involving the use of armed force are to be employed to
give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures.
These may include complete or partial interruption of
economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication,
and the severance of diplomatic relations.
 Forcible Measures

Article 42
Should the Security Council consider that measures
provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air,
sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action
may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the
United Nations.
 Chapter VIII Missions

Chapter VIII of the United Nations Charter deals with

regional arrangements. It authorizes
regional organizations (such as the African Union) and
even requires attempts to resolve disputes through
such agencies (if available) prior to intervention by the
UN Security Council. However, Article 53 provides that
"no enforcement action shall be taken under regional
arrangements or by regional agencies without the
authorization of the Security Council."
 War by proxy

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.”
 Proxy War

https://
www.bbc.com/news/world-middle-east-42008809
 Collateral Damage

https://www.dictionary.com/browse/collateral-damage

https://www.dictionary.com/browse/collateral-
damagehttps://www.dictionary.com/browse/collateral-
damage
 Protected Zones

https://
ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rul
e35
Hospitals, Schools, Worship places.
 Terrorism

War on Terror

Sui generis
 International Conflict

 1) 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.
 (2) 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.
 https://
ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=o
penDocument&documentId=BE2D518CF5DE54EAC1257F7D003
6B518
 Civil war

Non-international armed conflict

Should the war be a civil one (which can properly be

described as an armed conflict), international law would
point to the non-intervention 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). 
 Geneva Conventions

1925: Prohibition of Chemical & Biological weapons

1929: Wounded & sick prisoners of war

1949: The Geneva Convention relative to the Treatment

of Prisoners of War
 Unlawful combatant

 An unlawful combatant, illegal
combatant or unprivileged
combatant/belligerent is a
person who directly engages
in armed conflict in violation of
the laws of war. An unlawful
combatant may be detained or
prosecuted under the domestic
law of the detaining state for
such action.
Controversies about Law of War

Hegemonic Intervention

NATO

Warsaw Pact

Organization of American States

Intervention on basis of Consent

State is under insurgency

Insurgents are declared belligerent
Intervention is aimed @ restoring de jure sovereignty
Saudi attack on Yemen 2011-
Soviet Attack on Afghanistan 1979-
Ethiopian Attack on Somalia
 Forcible Intervention for National
Liberation

Observers status in UN General Assembly for Palestine,

Zimbabwe, Angola etc

Libyan war 2011 –

Intervention against Terrorism & Non-
state Actors

Article 51 “by one state against another”

However, following Nicaragua the following conditions must

be fulfilled:
(1) Defence against non-state actors is permitted
(2) Irregular forces can be part of state forces especially
where
(3) Non-state actor / terrorist is given refuge by state
unable to control them
Main Examples are retaliatory

US attack on Taliban in Afghanistan in 2001

Israeli attacks on Hamas targets in Arab world

Vietnam War ( based on Article 42 of UN charter)

 Other criticisms

Lack of Engagement with the Populace