Even during war, there are rules that should be followed inside several multilateral legal frameworks governing warfare and issues equivalent to the treatment of combatants and civilians.
Understanding what rules apply to what types of conflicts is significant because it will possibly provide the best protection for civilians caught in the crossfire and greater accountability against perpetrators of war crimes. At a time when two major wars are happening – in the Middle East and in Ukraine – such understanding becomes particularly vital.
Historically, there have been laws of war divided into two categories: concerns acceptable conduct in war; and , which incorporates flexible justifications for going to war.
Let’s explore commonly generally known as international humanitarian law.
The two foremost sources of international humanitarian law are multilateral treaties – including: Hague Convention IV from 1907, 4 Geneva Conventions from 1949 and the so-called Additional protocols of 1977 – along with customary international lawunofficial rules governing the conduct of warfare.
Three rules
Modern international humanitarian law is predicated on three vital principles: distinction, military necessity and proportionality.
The principle of distinctionformalized in the Additional Protocols, refers to the military’s responsibility to differentiate combatants from civilians when military commanders determine who’s targeted.
This requires combatants to differentiate themselves from non-combatants, which is frequently achieved by wearing uniforms. It also requires combatants to focus on only military targets.
(AP Photo/Hatem Ali)
Military necessity serves as a guide in determining what is taken into account a legitimate military objective. This principle is an try to balance the aggressor’s need to realize a military advantage with minimizing suffering. Although mentioned in several multilateral treaties, neither the Geneva Conventions nor the Additional Protocols explicitly codify this vital concept.
Finally, the principle of proportionality attempts to supply military commanders with guidance on how you can balance the value of a specific military objective with humanitarian considerations. Articles 51 and 57 The Additional Protocols formalize this principle.
Relevance to ongoing wars
The application of international humanitarian law to the Russia-Ukraine war is straightforward. Since the conflict is between two states and each Russia and Ukraine are signatories to all 4 Geneva Conventions, the conflict is a world armed conflict and these conventions are fully applicable.
In March 2023, the International Criminal Court issued a judgment arrest warrant for Russian President Vladimir Putinaccusing him of war crimes, including illegal deportations and transfers of children.
(AP Photo/Efrem Lukatsky)
Regarding the Israel-Hamas war, the application of international humanitarian law is more complicated since it is unclear whether it will possibly be considered a world or non-international armed conflict. If Hamas is an independent militant organization that doesn’t fight on behalf of the existing Palestinian state, then the current conflict could be a non-international armed conflict.
I mean only Common Article 3 the Geneva Convention would apply. This is significant because Common Article 3 provides less protection for combatants and civilians.
For example, although prisoners of war and civilians should be “treated humanely” under Art. 3 of the common article, this is much from the full scope of protection provided for in existing multilateral treaties.
Palestinian statehood in query
However, if the Israel-Hamas war is taken into account a world armed conflict, the situation is different. Some say that since the situation in Gaza involves the ongoing occupation, the conflict is international and the Geneva Conventions apply.
Such a position is clearly unacceptable to the Israeli government because it might suggest that Palestine is a state and subsequently Hamas fighters should receive full protection as prisoners of war.
But even when Palestine is taken into account a state, there isn’t a reason why Hamas fighters must be considered prisoners of war. Geneva Convention III it states quite clearly who qualifies for this status.
The convention states that every one those engaged in hostilities must conduct “… their actions in accordance with the laws and customs of war.”
About 1,200 people died in the October 7 attacks in Israel. Since then, Hamas fired tons of of rockets into Israel, indiscriminately attacking population centers. Israel retaliated with unprecedented use of force in the Gaza Strip, killing over 18,000 people.
(AP Photo/Ariel Schalit)
Violation of international law
Hamas’ deliberate attacks on civilians and hostage-taking are in direct violation of international humanitarian law.
The International Criminal Court has been conducting an open investigation into alleged war crimes committed in Palestine by each Hamas and Israel, which began in 2015. ICC Prosecutor Karim Khan recently visited Israel and called on each parties to respect their obligations to uphold international humanitarian law.
International calls for a ceasefire have gotten more frequent. More than 150 members of the UN General Assembly, including CanadaI voted for a a resolution calling for a ceasefire. Ten members voted against resolution, including Israel and the United States.
USA too recently vetoed a UN Security Council resolution for a ceasefire.
As the situation develops, it must be remembered that the classification of an armed conflict as international or non-international has a major impact on the protection provided to combatants and the civilian population.
In the absence of a ceasefire, this classification category may even have an effect on the level of responsibility that perpetrators of war crimes will face.