Humanitarian and Security Law from a
European Perspective
Course - Prof. dr. Jan Wouters
About the course
Upon the commencement of this academic course, the prevailing global landscape was
characterised by a relatively limited number of armed conflicts. However, the passage of time
has borne witness to a stark escalation in the incidence of such conflicts, with a current count
of no less than 41 ongoing wars. These conflicts are manifold, involving not only interstate
hostilities but also a notable surge in intrastate strife, often termed civil wars. Regrettably,
certain legal norms are inapplicable to the domain of non-international armed conflicts,
compounding the complexities of contemporary armed conflict.
Egregiously, civilians constitute an alarming 90% of the victims ensnared within the crucible
of armed conflicts. This disconcerting paradox underscores the ostensibly incongruous nature
of warfare, which ostensibly exists to safeguard and protect civilian populations. The deliberate
targeting of civilians in armed conflicts constitutes an unequivocal war crime, firmly proscribed
by established international legal conventions.
An array of contemporary security imperatives serves as catalysts for armed conflicts, thereby
imparting a dimension of urgency to the study of conflict dynamics. Such security concerns
encompass the global campaign against terrorism, notably evident in the actions of nations such
as France and the United States. Concurrently, the proliferation of failed states, as exemplified
by the tumultuous situations in Somalia and Mali, serves as a precipitant of conflict.
Additionally, the international system grapples with novel manifestations of aggression
emanating from formidable states like Russia and China, whose formidable capabilities afford
them a degree of impunity in pursuing military endeavours. The globalization phenomenon has
further facilitated the emergence of hitherto unprecedented security threats, including cyber-
attacks and transnational organized crime, often affiliated with nefarious entities such as
criminal syndicates or rogue states like North Korea. Moreover, the unreliability of traditional
allies, as evidenced by shifting allegiances within the United States, augments the complexities
of international security dynamics.
The recent decades have posed formidable challenges for the International Criminal Court
(ICC), whose mandate has witnessed renewed impetus, notably catalysed by the conflict
between Russia and Ukraine. While the ICC has experienced a surge in activity and heightened
engagement, it simultaneously grapples with mounting accusations from countries in the global
South, who castigate the institution as an instrument of NATO powers, contending that it is
subjected to undue influence. Consequently, a palpable sense of frustration pervades the
international community.
This academic course, titled “Humanitarian and Security Law from a European Perspective,”
constitutes a comprehensive exploration of various legal branches and their application to
armed conflicts and security concerns. Encompassing public international law, it delves into
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,jus ad bellum, scrutinizing aspects of the UN Charter, self-defence, aggression, peacekeeping,
and peace enforcement. The course proceeds to elucidate the rules governing armed conflict,
widely denoted as jus in bello, characterised by their impartial application irrespective of fault
attribution. Jus ad bellum examines culpability, inquiring into the question of “who did
something wrong,” whereas jus in bello operates independent of fault determination. This
encompassing legal framework extends to considerations pertaining to the means and methods
of warfare, the protection of non-combatants, arms control measures, and the interface with
human rights imperatives. The study of international criminal law assumes paramount
significance, encompassing the repression of war crimes and the operative functions of
international criminal tribunals. Furthermore, selected facets of European Union law and
policies, such as conflict prevention, peacebuilding, including post-conflict reconstruction and
transitional justice, as well as the realm of Common Security and Defence Policy (CSDP)
missions and counterterrorism initiatives, are integral components of the course curriculum.
Upon the cessation of hostilities, the paramount objective is to establish a conducive
environment that forestalls the rekindling of conflict. Unfortunately, the post-conflict
landscape often presents formidable challenges, necessitating a protracted and labour-intensive
process of nation-building and the consolidation of lasting peace. This endeavour, however,
requires a sustained commitment of time and resources, a commitment that states and
international organizations may be willing to extend only to a certain threshold.
Ultimately, the course’s overarching aim lies in fostering a profound comprehension of the
multifaceted nature of armed conflicts and security risks, alongside an examination of their
legal underpinnings. It endeavours to illuminate the intricacies of legal responses at both the
international and European levels. The comprehensive “conflict cycle” constitutes the focal
point of study, encompassing the spectrum from conflict prevention and jus ad bellum to jus in
bello, the repression of war crimes, and the exigencies of post-conflict reconstruction. It is
imperative to acknowledge that, invariably, legal mechanisms tend to intercede only after the
eruption of armed conflict—a circumstance underscoring the preference for pre-emptive
interventions aimed at averting conflict in the future.
Session 1 – Patterns of armed conflicts and international legal
responses thereto over time
The depicted painting captures a historical event in which Rome engaged in a conflict with the
Swabians, a neighbouring region, over the acquisition of women. During this period, Rome
faced a shortage of women, compelling them to seek the retrieval of women from the
surrounding areas.
Notably, the painting also features a tarpan rock, which served as a harrowing element in the
narrative. Historically, individuals were often forcibly pushed to their deaths from such rocky
precipices. This inclusion adds a grim dimension to the composition, underscoring the gravity
of the events depicted.
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,What is “war”?
The concept of war, both in practical terms and in a legal context, is indeed complex and
multifaceted. On a factual level, war typically involves large-scale organized violence that has
a profound impact on a significant number of human lives. Often, it entails the deployment of
armed forces and the engagement of armies in hostilities.
However, from a legal perspective, the definition and terminology surrounding war are
intentionally nuanced and at times avoided by countries for strategic reasons. This avoidance
allows nations to maintain flexibility in their actions during conflicts, as applying certain legal
labels can carry specific obligations and consequences.
Historically, The Hague Regulations emphasized the formal declaration of war as a prerequisite
for the commencement of hostilities. Nevertheless, many nations did not strictly adhere to this
requirement, and in practice, wars often began without formal declarations.
The League of Nations, through the Covenant of the League of Nations, attempted to introduce
mechanisms to encourage diplomatic solutions and prevent conflicts from escalating into war.
However, the effectiveness of such efforts was limited, as evidenced by subsequent conflicts
that did not align with the ideals of conflict prevention.
The Kellogg-Briand Pact of 1928, also known as the Pact of Paris, is a notable example of an
international agreement that sought to outlaw war as an instrument of national policy. While it
did establish the principle of renouncing war as a means of resolving disputes, it did not
effectively prevent subsequent conflicts, as some nations engaged in hostilities under
alternative justifications or labels.
In contemporary international law, the term “war” is often avoided, and the focus shifts to the
use of force or the threat of force. This is evident in the United Nations Charter, which prohibits
the use of force or threat of force except under specific circumstances, such as in self-defence
or when authorized by the UN Security Council.
In the realm of humanitarian law, the terminology also evolves to avoid the term “war.”
Instead, the legal framework distinguishes between international armed conflicts, involving
states, and non-international armed conflicts, which occur within the borders of a single state.
These distinctions are important because they determine the applicability of different legal
rules and protections during armed conflicts.
In essence, the complexity and evolution of the terminology surrounding war in international
law reflect the ongoing efforts to balance the need for legal regulation with the practical
realities of conflict and the preservation of state sovereignty and flexibility in decision-making.
Why war?
The initiation of armed conflicts by sovereign states is a multifaceted phenomenon deeply
rooted in geopolitical, territorial, and resource-driven motivations. The impetus for
internationalized conflicts may be attributed to various causative factors, each reflecting
distinct aspects of state behaviour and international relations:
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, 1. Self-Defence: The commencement of hostilities can arise from a state’s legitimate
exercise of self-defence, exemplified by the conflict between Russia, as the aggressor,
and Ukraine, which invoked its right to self-defence under international law.
2. Expansion or Annexation: Some nations resort to war in pursuit of territorial
expansion or annexation, mirroring historical instances such as the ambitious territorial
undertakings of the French Empire.
3. Liberation or Self-Determination: The principle of self-determination, initially
articulated by U.S. President Wilson, has emerged as a prominent rationale for conflict.
This principle, enshrined in the UN Charter, pertains to the right of peoples to govern
themselves, albeit without a universally accepted definition of “people.” The principle
has also been invoked to thwart colonialism.
4. Secession: Secession entails the unilateral withdrawal of a region or entity from a larger
state. This is exemplified by Belgium’s quest for independence from the Netherlands,
a pursuit that garnered the support of the seasoned French military. A comparable
instance is the secessionist movement in the United States. The international response
to such events may vary depending on contextual factors, as evidenced by Catalonia’s
unsuccessful bid for secession and Scotland’s failed attempt following a referendum.
5. Aggression: Aggressive states, typified by Germany in both world wars, often
precipitate conflicts through aggressive expansionist policies, demonstrating how the
quest for power and domination can lead to global conflagrations.
6. (Humanitarian) Intervention: Armed intervention for humanitarian purposes,
ostensibly aimed at saving lives, is another rationale for armed conflicts. NATO’s
intervention in Kosovo, undertaken to halt the bloodshed, exemplifies this approach.
However, humanitarian intervention remains contentious, particularly in the global
South, where the legacy of former colonial powers’ interventions lingers.
7. National or International Security: Concerns over national or international security,
often fuelled by the fear of external aggression or terrorist threats, can trigger conflicts.
Terrorism has become a defining feature of contemporary security considerations,
leading states to take pre-emptive measures.
It is essential to distinguish between secession and self-determination, as they denote distinct
processes. Secession involves the unilateral withdrawal of a territorial entity from a sovereign
state, whereas self-determination signifies the right of a people to self-governance, embracing
their unique culture, language, and institutions. These concepts encompass both internal and
external dimensions, underscoring the complexity of their applications.
Internal conflicts warrant distinct consideration due to their intricate nature. Historical and
contemporary examples demonstrate that such conflicts can originate from factors like
sectarianism, ethnic tensions, ideological divisions, and religious discord. Furthermore,
competition for essential resources such as arable land, water, and energy sources can constitute
potent triggers for internal conflicts, accentuating the enduring relevance of resource-driven
conflicts in contemporary geopolitics.
Patterns of war over time
The discourse on the nature of warfare within the context of International Humanitarian and
Security Law invites us to transcend conventional assumptions regarding the perceived
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