Nature and Scope of Prohibition of Use of Force under International Humanitarian Law

By Bakampa Brian Baryaguma

[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak]

bakampasenior@gmail.com; www.huntedthinker.blogspot.ug

August, 2022

1.                  Introduction

Using force is frowned upon and generally prohibited in the community of nations. It is outlawed under Article 2 (4) of the 1945 Charter of the United Nations (hereinafter ‘the Charter’) in the following terms: ‘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.’ International law however, recognizes certain exceptions to this general rule. The most prominent exception is the right to self-defence that is enshrined in Article 51 of the Charter. The article states that, ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.’ Other situations such as the need for humanitarian intervention where there is no effective government and civil order has consequently collapsed, or if there is deliberate and systematic violations of human rights, including forced expulsions, ethnic cleansing and in the most extreme cases genocide, can justify an international armed attack. But it should be noted that armed attacks are not just inter-state (i.e. between states): they can also be intra-state (i.e. within a state). Whatever the case may be, it is an armed attack; and when it ensues, then an armed conflict gets underway, which triggers the application of international humanitarian law (hereinafter ‘IHL’).

IHL is also known as the law of armed conflict since it acts as the law in war and only applies during armed conflicts.^[1] It is the branch of international law that governs the conduct of war.^[2] IHL limits the choice of means and methods of conducting military operations and obliges belligerents to spare persons who do not, or who no longer, participate in hostilities.^[3] It restricts violence to the amount necessary to achieve the aim of the conflict, which – independently of the causes fought for – can only be to weaken the military potential of the enemy. These guidelines and limitations emerged after, ‘Politicians and soldiers … recognized that they can achieve many of their objectives if they fight within agreed standards of conduct.’^[4]

IHL addresses the conduct of parties to armed conflicts, dealing with such issues as the conduct of hostilities, combatant and prisoner of war status and the protection of the Red Cross and Red Crescent emblems.^[5] To achieve these objectives, IHL encompasses all forms of armed conflicts and actors involved in them, applying to both international armed conflicts and non-international armed conflicts (like civil wars, coups, revolutions and other related instabilities). It also applies to state (government) actors, non-state actors (like armed rebel groups) and individuals.^[6]

The main treaty sources applicable in international armed conflict are the four Geneva Conventions of 12 August 1949^[7] and their Additional Protocol I of 1977,^[8] while the main treaty sources applicable in non-international armed conflict are article 3 common to the Geneva Conventions and Additional Protocol II of 1977,^[9] by virtue of which IHL also binds non-state armed groups during armed conflicts. In the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America)^[10] (hereinafter ‘Nicaragua v. United States case’), the International Court of Justice (hereinafter ‘the ICJ’ or ‘the Court’) held that the Conventions merely give specific expression to the general principles of humanitarian law and as such therefore states parties to them are under an obligation to "respect" and even "ensure respect" for them.^[11] Then, in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) case (hereinafter ‘the DRC v. Uganda – 2005 case’), the ICJ held that according to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.^[12]

2.                  Nature and Scope of IHL Prohibitions

IHL is underlined by prohibitions of excessive conduct in armed conflicts. At the core of it lies the aspiration to ensure that humanity and civility prevail even in incredibly difficult times and circumstance of armed conflict. Humanity and civility should not be sacrificed at the altar of and quest for politico-military prowess. In order to achieve this objective, a set of international rules, established by treaty or custom, specifically intended to solve humanitarian problems directly arising from armed conflicts, have been developed and designed to limit the use of violence during those conflicts. Limitation in this case is framed in terms of prohibitions, which constitute the basic principles of IHL. They are the following–

1.                  The Distinction between Civilians and Combatants

This principle demands that the two should always be separated by reserving violence for combatants, while sparing civilians from it.^[13] It is therefore prohibited to attack civilians for reasons that they are unarmed and thus unable to defend themselves. This prohibition imparts a duty on any force under whose ambit and authority civilians find themselves: be it the state whose citizens they are, armed groups hostile to that state, or even a foreign occupier. Hence, in the DRC v. Uganda – 2005 case, the ICJ, having concluded that Uganda was the occupying Power in Ituri at the relevant time, stated that, as such, it was under an obligation, according to Article 43 of the Hague Regulations, to take all measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC; and that this obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence and not to tolerate such violence by any third party.^[14]

2.                  The Prohibition to Attack those Hors de Combat

This means those people that are out of action due to injury or damage. The principle requires that those who no longer pose serious threats should not be killed, injured or damaged further. A combatant is hors de combat if he or she is in the power of an adverse party; he clearly expresses an intention to surrender; or he has been rendered unconscious or is otherwise incapacitated by wounds or sickness and is therefore incapable of defending himself: provided that in any of these cases he abstains from any hostile act and does not attempt to escape, he may not be made the object of attack.^[15] Nothing allows the summary execution and murder of any person hors de combat unless a fair trial has taken place implicating that person in a criminal offence.^[16]

3.                  The Prohibition to Inflict Unnecessary Suffering

This prohibition promotes a humane approach to war, by forbidding anything which causes excessive – and therefore unnecessary – suffering to others in the conflict. The purpose of prohibiting unnecessary suffering is to, ‘… to protect life and health and to ensure respect for the human being …’.^[17]

4.                  The Principle of Necessity

This principle demands that any force used must be necessary in the circumstances. In the DRC v. Uganda – 2005 case, the ICJ adjudged that unlawful military intervention that violates the sovereignty and territorial integrity of another state to be a grave violation of the prohibition on the use of force expressed in Article 2 (4) of the UN Charter.^[18]

5.                  The Principle of Proportionality.

This principle requires that the force used should be commensurate to the threat confronted with. Use of excessive force is prohibited. What is commensurate and therefore proportional is determined from self-defence interests of the concerned party, in response or reaction to threats posed by the adversary. In the Nicaragua v. United States case, the ICJ recognized self-defence as a right existing in customary international law, ‘… warrant[ing] only measures which are proportional to the armed attack and necessary to respond to it …’.^[19] This decision was followed in the DRC v. Uganda – 2005 case where it was held that international law accepts self-defence as a concept.^[20] The ICJ, in the Nicaragua v. United States case, qualified this right stating that, ‘In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack.’^[21]

3.                  Conclusion

Michael Wood submits that whether, ‘… a State resorts to armed force is ultimately a policy question rather than one of law.’^[22] Be that as it may, what is indisputable is that the moment a state chooses to resort to armed force, developments thereafter are a question of law, because henceforth IHL sets in to regulate the conduct of the war – by whatever name called – and of the warring parties, by stipulating certain prohibitions, underpinned by the understanding that the execution of armed conflict should not be a do or die matter: a situation where anything and everything goes.

 

References

1.                  Fiona Ang, A Commentary on the United Nations Convention on the Rights of the Child, Article 38: Children in Armed Conflicts (2005), at 1511. Accessed online at https://books.google.co.ug/books/about/A_Commentary_on_the_United_Nations_Conve.html?id=TcAqEAAAQBAJ&source=kp_book_description&redir_esc=y, on 31 July 2022, at 20:40 hrs.

2.                  Carolyn Hamilton and Tabatha Abu El-Haj, ‘Armed Conflict: the Protection of Children Under International Law,’ 5 IJCR (1997), at 3.

3.                  Grac’a Machel, Impact of Armed Conflict on Children (1996), at 49.

4.                  Ibid., at 48.

5.                  International Committee of the Red Cross, ‘International Humanitarian Law and International Human Rights Law: Similarities and Differences’ (2003), at 1.

6.                  Ibid., at 1-2.

7.                  The conventions are:

(i)                 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (Geneva Convention I);

(ii)               Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Geneva Convention II);

(iii)             Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III); and

(iv)             Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Geneva Convention IV).

8.                  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

9.                  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

10.              International Court of Justice, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), 1986.

11.              Ibid., at 104.

12.              International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) – see summary of the Court’s judgment of 19 December 2005, at 10.

The brief background of this case is that on 23 June 1999, the Democratic Republic of the Congo (DRC) filed an Application in the ICJ instituting proceedings against the Republic of Uganda in respect of a dispute concerning “acts of armed aggression perpetrated by Uganda on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity”. Among others, DRC accused Uganda of violating its obligations under international humanitarian law. On 19 December 2005, the Court delivered its judgment finding that by engaging in military activities against the DRC, Uganda violated the principle of non-use of force in international relations and the principle of non-intervention; further that by the conduct of its armed forces, which committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict and failed to take measures to put an end to such conflict, Uganda violated its obligations under international human rights law and international humanitarian law; and held that therefore, Uganda is under obligation to make reparation to DRC for the injury caused. On 9 February 2022, the Court fixed compensation due to DRC from Uganda to the tune of US$225,000,000 for damage to persons, US$40,000,000 for damage to property and US$60,000,000 for damage related to natural resources. The Court decided that the total amount due shall be paid in five annual instalments of US$65,000,000 starting on 1 September 2022.

13.              The European Court of Human Rights, in its 24 July 2008 judgment in the case of Kononov v. Latvia, (Application no. 36376/04) 2008 defined a civilian as, ‘… any person not belonging to one of the predefined categories of combatants or in respect of whom there is a doubt on that point …’.

14.              International Court of Justice, DRC v. Uganda – 2005 case supra note 12, at 9.

15.              International Committee of the Red Cross, ‘Hors de combat’ (2022).

16.              European Court of Human Rights, Case of Kononov v. Latvia (Application no. 36376/04) (2010), at 52.

17.              International Court of Justice, Nicaragua v. United States case supra, note 10, at 115.

18.              International Court of Justice, DRC v. Uganda – 2005 case supra note 12, at 9.

19.              International Court of Justice, Nicaragua v. United States case supra note 10, at 84.

20.              International Court of Justice, DRC v. Uganda – 2005 case supra note 12, at 8.

21.              International Court of Justice, Nicaragua v. United States case supra note 10, at 84.

22.              Michael Wood, ‘International Law and the Use of Force: What Happens in Practice?’ 53 Indian Journal of International Law (2013), at 349.