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.
