By LT COL MANOJ K CHANNAN, VETERAN
The evolving nature of warfare, particularly how it is defined and regulated by international law, especially in light of modern conflicts that blur the lines between traditional warfare and acts of terrorism. The importance of the Geneva Conventions in establishing rules for armed conflict and protecting non-combatants is underscored. The challenge lies in applying these laws to contemporary conflicts, such as those in Ukraine and between Israel and Hamas, where non-state actors may employ guerrilla or terrorist-like tactics, thus testing the adaptability and resilience of international humanitarian law. This analysis is crucial for understanding how these frameworks function in practice and how they are interpreted and enforced in today’s complex geopolitical landscape.
War
“War” is generally defined as a state of armed conflict between different countries or different groups within a country. War can involve declared and undeclared hostilities, ranging from traditional warfare between nation-states to civil wars and other internal armed conflicts.
The Geneva Conventions apply to international armed conflicts, which are conflicts involving at least two states. These conventions also apply to situations of occupation, where the territory of a state is placed under the authority of the hostile army, even if that occupation meets no armed resistance.
Moreover, the Conventions have provisions that cover non-international armed conflicts. These are conflicts that take place within the territory of a single state, involving either regular armed forces fighting groups of armed dissidents or armed groups fighting each other. A non-international armed conflict must reach a minimum level of intensity for the Geneva Conventions to apply, such as when the armed groups involved have an organized command structure and control territory, allowing them to carry out sustained and concerted military operations.
The Geneva Conventions apply automatically in declared war. However, they also apply in any other case of armed conflict that may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. There is an obligation on the parties to a conflict to respect the Conventions in full, regardless of whether or not a state of war has been formally declared.
In addition to the Geneva Conventions, Additional Protocols I and II (1977) expanded the rules for protecting victims of international and non-international armed conflicts, respectively, and clarified the conditions for their application. Protocol I apply to international conflicts and includes conflicts against colonial domination, alien occupation, and racist regimes in the exercise of their right of self-determination. Protocol II applies to armed conflicts, not of an international character and provides a broader scope of protection than the original conventions for those involved in internal conflicts.
War crimes are serious violations of the laws and customs that apply in armed conflict, which are laid out in international humanitarian law, particularly within the conventions of The Hague and Geneva. These crimes include a wide range of offences.
Wilful Killing. Intentionally causing the death of civilians or prisoners of war.
Torture or Inhuman Treatment. Subjecting individuals to physical or mental harm, including biological experiments.
Unlawful Deportation or Transfer. Forcibly displacing civilians or prisoners without cause.
Taking Hostages. Seizing or detaining individuals and threatening to kill, injure, or continue to detain them to compel action or inaction from a third party.
Extensive Destruction of Property. Destroying property not justified by military necessity and carried out unlawfully and wantonly.
Sexual Violence. Rape, enforced prostitution, or any form of indecent assault.
Utilizing Prohibited Weapons. Employing weapons and methods of warfare that are banned under international law, such as chemical or biological weapons.
Persecution. Intentional and severe deprivation of fundamental rights contrary to international law based on the political, racial, national, ethnic, cultural, religious, or gender as defined in the Rome Statute or other grounds.
Enforced Disappearance. Arresting, detaining, or abducting persons followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate of these persons.
Apartheid. Inhumane acts of a character similar to other war crimes committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed to maintain that regime.
These crimes are considered so severe that they concern all states. Any state can exercise jurisdiction over these crimes and should search for persons alleged to have committed or ordered the commission of such crimes to ensure they are punished. The International Criminal Court (ICC), established by the Rome Statute, has the jurisdiction to prosecute individuals for war crimes, genocide, crimes against humanity, and crimes of aggression.
Geneva Convention on War Crimes
The Geneva Conventions, which consist of four treaties formulated in Geneva, Switzerland, do not directly define “war crimes.” However, they establish the standards of international law for humanitarian treatment in war.
The First Geneva Convention (1949). Protects wounded and sick soldiers on land during war.
The Second Geneva Convention (1949). Provides similar protection for wounded, sick, and shipwrecked military personnel at sea during war.
The Third Geneva Convention (1949). Applies to prisoners of war (POWs), detailing their humane treatment during their captivity.
The Fourth Geneva Convention (1949). Offers protections to civilians, including in occupied territory.
Violations of the provisions contained in these conventions can constitute war crimes. These might include wilful killing, torture, taking hostages, unfairly denying a prisoner of war or a civilian a fair trial, extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly, and deportation or unlawful confinement.
In addition to these conventions, three additional protocols have been added since 1949.
Protocol I (1977). Protecting victims in international conflicts, including wars of liberation and conflicts against racist regimes.
Protocol II (1977). Focuses on protecting victims in non-international armed conflicts, such as civil wars.
Protocol III (2005). Introduced a new distinctive emblem, the red crystal, in addition to the red cross and red crescent.
These treaties and protocols do not include a specific list labelled as “war crimes.” However, the actions they describe as prohibited can be construed as such, and they form a substantial part of what is now considered customary international law on the subject. The term “war crime” is explicitly detailed under the Rome Statute of the International Criminal Court, which draws much of its definition from the violations of the Geneva Conventions.
Russian – Ukraine and Israel – Hamas Conflict
Russian-Ukraine Conflict. The situation between Russia and Ukraine is widely recognized as an international armed conflict, especially following Russia’s invasion of Ukraine in February 2022. As such, the laws of war, including the Geneva Conventions and their Additional Protocols, apply to both states. This means that both countries are obliged to treat prisoners of war humanely, care for the wounded and sick, and protect civilians and civilian infrastructure.
Israel-Hamas Conflict. The conflict between Israel and Hamas, which governs the Gaza Strip, is generally classified as a non-international armed conflict. Despite the non-state actor status of Hamas, the Geneva Conventions and their Additional Protocols still apply. Israel is a state party to the Geneva Conventions and is, therefore, bound by its obligations. Even non-state actors like Hamas are expected under international law to adhere to the principles of humanitarian law.
In both conflicts, individuals affected by the hostilities are protected under international humanitarian law. However, the application of these laws is subject to the interpretations and acceptance by the conflicting parties, and compliance is a subject of ongoing international concern and debate.
Classifying acts as terrorism and applying the Geneva Conventions are separate issues. While the term “terrorism” typically refers to the unlawful use of violence and intimidation, especially against civilians, for political purposes, whether a specific act constitutes terrorism is often determined by individual states and international bodies based on their definitions and criteria.
In the context of armed conflict, the Geneva Conventions are focused on protecting individuals who are not participating in hostilities, such as civilians and medical personnel. The actions of any armed forces, including the Israeli Defense Forces (IDF), are governed by the principles of international humanitarian law, which includes the Geneva Conventions and their Additional Protocols.
One of the fundamental principles of the Geneva Conventions is the principle of distinction, which requires parties to a conflict to distinguish between combatants and civilians and to direct their operations only against military objectives. The principle of proportionality also plays a critical role; it prohibits attacks that would cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive about the concrete and direct military advantage anticipated.
If the IDF issues warnings before an attack and takes measures to avoid or minimize civilian casualties, these actions would align with the efforts to comply with international humanitarian law. However, each military operation must be assessed individually to determine whether it complies with the Geneva Conventions. It is the role of competent international bodies and courts to investigate and rule on specific allegations of war crimes or violations of the Geneva Conventions.
“Fight a terrorist like a Terrorist”
The quote “Fight a terrorist like a terrorist” suggests adopting the methods or tactics of terrorists in responding to terrorism. This approach would likely be at odds with international humanitarian law, including the Geneva Conventions, which emphasize the protection of non-combatants and the prohibition of specific methods of warfare, regardless of the nature of the enemy or their tactics.
The principles enshrined in the Geneva Conventions and other international humanitarian law treaties include:
Distinction. The need to always distinguish between combatants and non-combatants. Attacks should only be directed at legitimate military targets.
Proportionality. Any attack must weigh the military advantage gained against the potential for civilian harm.
Precautions in Attack. Parties must take all feasible precautions to minimize harm to civilians and objects.
Prohibition of Indiscriminate and Disproportionate Attacks. It is prohibited to carry out attacks that do not or cannot discriminate between combatants and non-combatants or which would cause excessive civilian harm.
Adopting the tactics of a terrorist could involve the deliberate targeting of civilians or the use of indiscriminate violence, both of which are prohibited under the Geneva Conventions. States and state actors, such as national military forces, must adhere to these laws even when confronting non-state actors that may not observe the same norms.
Thus, responding to terrorism with tactics that violate these principles would indeed be a breach of the Geneva Conventions. States are expected to combat terrorism within the bounds of international law, including international humanitarian law and human rights law.
Non-State Actors and Hybrid Warfare
Hybrid warfare, which combines conventional military tactics, irregular tactics, terrorism, and criminal behaviour simultaneously and battlespace to achieve political objectives, poses complex challenges to international law, including the laws of war embodied in the Geneva Conventions.
The actions of conventional forces or special forces in combating non-state actors engaged in hybrid warfare are not automatically considered war crimes. However, such actions must comply with international humanitarian law (IHL). Here are several key points that clarify when actions may or may not be considered war crimes:
Legitimate Targets. Military forces are allowed to target military objectives—this includes the support base and revenue streams of non-state armed groups, provided they are directly related to the enemy’s war-fighting ability.
Distinction and Proportionality. Even when targeting legitimate military objectives, forces must distinguish between combatants and civilians and ensure that any civilian harm is not excessive concerning the military advantage anticipated from the attack.
Precautionary Measures. The attacking force must take all feasible precautions to minimize civilian harm, including providing adequate warning to civilians where possible.
Necessity. The principle of necessity requires that measures taken during an armed conflict must be necessary to achieve a legitimate military objective.
No Adverse Distinction. Persons and property must be treated without adverse distinction based on race, religion, gender, or political belief.
No Prohibited Weapons. Forces must not use weapons and methods of warfare that are prohibited by international law, such as chemical or biological weapons.
Treatment of Detainees. Detained individuals must be treated humanely, without torture or cruel treatment.
Actions that deliberately target civilians, fail to distinguish between civilians and combatants, use disproportionate force resulting in excessive civilian harm, or otherwise breach these principles could be considered war crimes. It is also important to note that the responsibility to comply with IHL applies not only to states but also to non-state actors involved in an armed conflict.
When allegations of war crimes arise, they are ideally investigated by impartial international bodies or national courts with jurisdiction over such crimes. The findings of such investigations determine whether specific actions constitute war crimes.
In conclusion, while the actions of conventional and special forces in response to non-state actors involved in hybrid warfare are not inherently war crimes, they must adhere to the stringent standards of IHL.
These standards mandate the humane treatment of all individuals, the avoidance of indiscriminate and disproportionate attacks, and the necessity and proportionality of military actions.
The legitimacy of military action against non-state actors, including those designated as terrorist organizations, is contingent upon its compliance with IHL, underscoring the imperative for all parties in a conflict to respect the rules of war as a cornerstone of international law and human dignity.
The author is an Indian Army Veteran.
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