Summary Concepts of War - The Types of Armed Conflict
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Course
International Humanitarian Law
Institution
The University Of Nottingham (UON)
In this summary, we shall turn our attention to the situations in which international humanitarian law applies. We will explore the historical notion of ‘war’, as distinct from today’s notion of an armed conflict. We will also consider the distinction that the law draws between an internation...
Seminar 2 – Concepts of War, International Armed Conflict and Non-
International Armed Conflict
M. Milanovic, ‘A Taxonomy of Armed Conflict’
Introduction
Whilst international armed conflict (IAC) and non-international armed conflict (NIAC) are relatively
clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts o not fit
the classical archetypes well.
Page 256 – ‘The qualification exercise is often deliberately avoided, for several reasons. First,
politically, the classification of armed conflict may have an impact on the perceptions of the legitimacy
of the warring parties. Secondly, pragmatically, the qualification exercise can be so complex and
indeterminate that dwelling on it overlong would threaten to bog down the implementation of basic
rules of IHL and undermine the whole purpose of the regime. Thirdly, normatively, for the last two
decades or so IHL has developed along the lines of a reasonably coherent project of bringing together
the substantive law applicable in IACs and NIACs.’
If a conflict can be named as an armed conflict, then the merging of substantive law would remove
the necessity to determine what type of armed conflict there is. Likely though a complete merger will
never be possible. There are some differences between IAC and NIAC that simply cannot be erased
War and Peace in Classical International Law
The Law of War and the Law of Peace (The Classical Period of International Law)
International law, a product of states lucking vertical authority, had no choice but to accept inter-state
violence as an unavoidable reality. However, because this violence could effect the relations between
peaceful states also, two regimes have emerged – the Law of War, and the War of Peace.
When conflict occurs, the Law of War steps in and replaces the Law of Peace. The rules become
predominately about the rights and obligations of belligerents, and the protection of neutrality. The
law did not regulate when states could resort to war – war was an expression of a States sovereignty.
Limitations on the unlimited freedom of states to wage war started to emerge only after the Hague
Peace conferences. These prohibitions however revealed the shortcomings of War as a legal term
War as a Subjective Legal Concept
Because the waging of war is an expression of state sovereignty, war could not legally exist without an
animus belligerendi (intention to fight) many argued. This could be proved by reference to criteria
such as the severance of diplomatic relations between belligerent, the presence of declarations of war,
or recognition of such a state by neutral powers.
As a result, objective criteria of war became insignificant. This could lead to widespread conflict where
states, for political reasons, refused to recognise war as taking place, opening a gap between fact and
law which could be exploited when it was in the State interest to do so. This created a obstacle to the
application of any humanitarian rules of the law of war.
Example (pg 260) – ‘One of the most notorious historical examples in which belligerents (as well as
third states and even the League of Nations Commission of Inquiry)30 refused to recognize a state of
war despite all evidence to the contrary was the ‘Manchurian crisis’ or the Sino-Japanese war.31 The
‘crisis’ started with the full-scale Japanese invasion and the occupation of Manchuria, a Chinese
province. It involved heavy military clashes with great loss of life.32 Eventually, Japan renamed
Manchuria as Manchukuo and established it as a puppet state. Yet both China and Japan refused to
recognize that a state of war existed between them. Japan did so in order to preserve its good
standing as a founder of the League of Nations and a signatory of the Kellogg-Briand Pact.33 China
did not want to disturb its trade with the United States by activating the laws of neutrality.34 As the
existence of war was denied by both parties, the law of war could not apply.’
War as Inter-State Conflict
With one exception (discussed below), war as a legal concept denoted solely inter-state armed
conflict. It was thought that only modern states with their trained disciplined standing armies could
observe and create the laws of war. Non-state armed groups were not only undeserving of protection,
but could not comply with rules designed to regulate the conduct of states
This state-centric conception of war had benefits for warring states. The belligerents populations were
seen as participants in the conflict, not matter their real status, and could therefore be killed or
enslaved at will. Warfare was essentially unrestrained.
This approach excluded conflict between European empires at the margins of the ‘civilized world’, as
was precisely their intent. The laws of war applied only to those belonging to the ‘civilized family of
nations’ for which they were designed.
, Civil War: Rebellion, Insurgency and Belligerency
The exclusion of internal conflicts from the scope of international legal regulation was not an absolute
rule. The need to regulate at least some internal conflicts became apparent, particularly in order to
protect the interests of third states, and humanity.
The laws of war as a result also become concerned with the relationship between belligerents and
neutrals. Subsequently, the law of nations was allowed to step in and define the relations between the
(civil) belligerents themselves. This interference of international law in internal conflict was, however,
of limited character, with regulation being of an ad hoc, inconsistent and even arbitrary character.
Pg 263 – ‘Internal armed struggles came to be seen through three legal categories - rebellion,
insurgency and belligerency. Any one of these could have been characterized in common parlance as a
civil war. A rebellion was an uprising of limited duration and intensity which could have been
successfully resolved with regular police action.50 Insurgency involved ‘the existence of an armed
revolt of grave character and the incapacity, at least temporarily, of the lawful Government to
maintain public order and exercise authority over all parts of the national territory’.51 The two were
outside the scope of international law unless the insurgency ultimately proved to be successful,
whether in replacing the prior government of the country or in managing to effect secession of part of
its territory.’
Pg 263 – ‘’Belligerency, in contrast, was regulated by international law if a number of conditions were
met. As canonically summarized by Wheaton, these were ‘the existence of a de facto political
organization of the insurgents, sufficient in character, population and resources, to constitute it, if left
to itself, a State among the nations, reasonably capable of discharging the duties of a State; the
actual employment of military forces on each side, acting in accordance with the rules and customs of
war’.52 While these criteria seemed objective, they were much debated due to their openness to
different interpretations. The malleability and vagueness of the criteria suggested that the recognition
of belligerency was always more a matter of political expediency than a matter of law.’
The effect of recognition of belligerency, either by the state, or a neutral state with interests effected,
turned civil war into a ‘war’ proper, regulated by the laws of war. Thus insurgents would acquire
international personality and be effectively admitted as putative members into the family of civilized
nations. This however did not prevent the government treating the insurgents as traitors once the
conflict was over
Belligerency was rarely recognised however. Third states were reluctant to recognize belligerency in
order to avoid the restrictions on commerce and all other consequences that the rules of neutrality
imposed, and in order to avoid causing great offence to governments embroiled in civil strife.59 On
the other hand, for such governments recognizing belligerency would invariably be seen as an
admission of weakness and a legitimization of the insurgents.
A Conceptual Revolution: Impact of the Second World War
A Separation of the Jus ad bellum (right to war) and the jus in bello (the laws of war)
WW2 was the crucible that shaped the modern law of armed conflict and broke the framework of
classical international law. It separated the jus ad bellum and the jus in bello, and rejected the
concept of war in both senses
While any state could resort to force any time it wished, the manner in which force was used
required some basic legal regulation, resting on the reciprocity and mutuality of obligations; it
took the devastation of the two world wars to bring ad bullum considerations fully back into the
picture. With the entry into force of the UN Charter in 1945 and the four Geneva Convention in
1949, the separation between the two was complete. Jus in bello is now known as IHL
Pg 265 – ‘It is because we know from experience that every party to a conflict will portray itself
as having a just cause that we cannot accept a principle by which a ‘just’ party would have to
abide by fewer obligations, as that would invariably lead to a spiral of law-breaking that the law
and the humanitarian interests it seeks to protect could not survive’
Discarding the Concept of War in both the jus ad bellum and the jus in bello
In the jus ad bellum, war was replaced with the more general concept of the use of armed force, with
Art 2(4) UN Charter providing that members should refrain from the threat or use of force against any
state. In the jus in bello, war was replaced with the notion of international armed conflict, as provided
for in Common Article 2 of the 1949 Geneva Conventions
Reasons for this – war was too rigid in its consequences as we have seen – thus leading to states
denying war was taking place. Second, war was too contested as a concept in its definition. Third, war
was regarded as subjective. Finally, a significant number of inter-state armed force went legally
unregulated since the laws of war could not apply where there was legally no war
War itself also seemed to exclude, for the most part, internal conflicts.
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