JURIST Guest Columnist Kevin Govern of Ave Maria School of Law in Naples, FL (formerly at Ann Arbor, MI) examines the relevance of the four Geneva Conventions signed in August 1949, 60 years ago this month, in the context of untraditional conflicts that he describes as being "between war and peace"…

The nature and proliferation of national and international armed conflicts from the 20th Century through the present day have challenged traditional notions of what is or is not a "war," and which legal principles apply to such conflicts. Sixty years ago, on August 12, 1949, sixty-four countries that had lived through the tragedy of war came together to sign the Geneva Conventions, the cornerstone compacts of international humanitarian law (IHL) that regulate the conduct of armed conflict and seek to limit its effects.

These four Conventions included:

• The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug 12, 1949 (GWS). This Convention represents the fourth updated version of the Geneva Convention on the wounded and sick following those adopted in 1864, 1906, and 1929;
• The Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked; Members at Sea, Aug 12, 1949 (GWS Sea), This Convention replaced the Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention;
• The Geneva Convention Relative to the Treatment of Prisoners of War, Aug 12, 1949 (GPW), which replaced the Prisoners of War Convention of 1929; and,
• The Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, Aug 12, 1949 T.I.A.S. 3365. (GC) (Geneva Conventions, 1949) adopted before 1949 but signed in 1949.

The Geneva Conventions and their Protocols Additional of 1977 are looked to as instruments circumscribing, prescribing, and proscribing the permissible use of armed force within the context of a variety of other internationally recognized legal bases for use of force in relations between States found in both customary and conventional law. Generally speaking, however, modern jus ad bellum (the law of resort to war) is reflected in the United Nations (UN) Charter. The Charter provides two bases for the resort to force: Chapter VII enforcement actions under the auspices of the Security Council, and self-defense pursuant to Article 51, which governs acts of both individual and collective self defense. (Charter, 1945).

The UN Charter, specifically Chapter VI: Pacific Settlement of Disputes (Articles 33-38), and Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39-51), envisioned a Security Council role in assisting parties to “any dispute likely to endanger the maintenance of international peace and security” as they strive to resolve conflicts through “peaceful means of their own choice.”

The four Geneva Conventions were drafted to protect civilians and health/aid workers who are not taking part in the hostilities, as well as those “out of combat” who are no longer participating in the hostilities, including wounded, sick, and shipwrecked soldiers and prisoners of war.

Today, the use of force and threats thereof present challenges regionally and globally to individuals, corporations, nations, and other organizations of persuasion. At its most benign and pacific, force or the potential use thereof may encourage and nurture peace or deter aggression. At its most belligerent, force or the potential use thereof may be a dramatic and overwhelming tool of compulsion. A multitude of new terms have emerged to describe such armed conflicts, including (but not limited to):

Brushfire wars, Complex Emergencies, Complex Humanitarian Operations, Complex Contingency Operations, Contingency Operations, Crises, Dirty Little Wars, Disaster Operations, Guerilla War, Humanitarian Operations, Insurgencies & Counterinsurgencies, Internal War/Armed Conflict, Irregular Warfare, LIC (low intensity conflict), LRC (localized regional conflicts), MOOTW (military operations other than war), OMO (other military operations), OO (other operations), OOTW (operations other than war), Partisan War, Peace Operations, Peace Support Operations, People’s war, Revolutionary Warfare, Rebellion, SASO/SOSO (stability and support operations, Small Wars, UW (Unconventional Warfare), Wars of National Liberation

. . . and many others!

Not all of these terms/acronyms hold the same legal, political, or operational significance to the counselor, commander, coordinator, civilian, or political leader affected by or effecting change during these armed operations “between war and peace.” This begs the question: just exactly what is war? It is generally recognized that, aside from political declarations, war is a contention, i.e., a violent struggle through the application of armed force.” Elements of what constitutes a war may include: a) a contention; b) between at least two nation states; c) wherein armed force is employed; d) with an intent to overwhelm.

In that context, a multitude of applicable legal principles and broad statements of law have become particularly contentious in the instances of intranational armed conflicts, and certain international “undeclared” wars or armed conflicts, yet with respect to “international armed conflict,” this threshold is codified in Common Article 2 of the Geneva Conventions of 1949.

Common Article 2 states: “[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” This is a true de facto standard, where the subjective intent of the belligerents is not relevant. Armed conflicts such as the 1982 Malvinas (Argentina)/Falklands (UK) War, the Iran-Iraq War of the 1980s, and the first (1991) and second (2003-04) U.S.-led Coalition wars against Iraq could be considered “international armed conflicts” to which the Law of War applied. The 1977 Protocol I Additional to the 1949 Geneva Conventions has expanded this scope of application to include certain wars of “national liberation” for parties to that convention. According to Pictet’s Commentary on the Geneva Conventions, the law of war applies to: “any difference arising between two States and leading to the intervention of armed forces.”

Article 2 effectively requires that the law be applied broadly and automatically from the inception of the conflict. Howard Levie in The Code of International Armed Conflict opined that the following two facts result in application of the entire body of the law of war: (1) A dispute between states, and (2) Armed conflict. An exception to the “dispute between states” requirement arises where there is a conflict between a state and a rebel movement recognized as belligerency. This concept arose as the result of the need to apply the Laws of War to situations in which rebel forces had the de facto ability to wage war. The Law of War ceases to apply under Article 5, GWS
and GPW and Article 6, GC upon: (1) final repatriation (GWS, GPW); (2) general close of military operations (GC); or (3) occupation (GC), in which case it applies for one year after the general close of military operations. In situations where the Occupying Power still exercises governmental functions, however, that Power is bound to apply for the duration of the occupation certain key provisions of the GC. For military operations under circumstances other than armed conflict (e.g., peacekeeping and peace enforcement in Somalia, Haiti, and Bosnia), the Law of War, in general, will also apply, but the applicability of particular treaties is open to interpretation.

Conflicts which are not of an international character “…occurring in the territory of one of the High Contracting Parties” will fall under Common Article 3, and make up the majority of the ongoing conflicts. International regulation over such conflicts is more regulated than under international armed conflicts, and domestic law may control the application and use of force or other economic, political, or military applications of state authority.

While there is no objective definition for what lies “between war and peace,” IHL is somewhat clearer on what constitutes an “internal armed conflict.” Although no objective set of criteria exists for determining the existence of a non-international armed conflict, Pictet listed several suggested criteria: (1) the rebel group has an organized military force under responsible command, operates within a determinate territory, and has the means to respect the Geneva Conventions; and, (2) the legal Government is obliged to have recourse to the regular military forces against the rebels, who are organized and in control of a portion of the national territory. Protocol II of The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, was intended to supplement the substantive provisions of Common Article 3. It formalized the criteria for the application of that convention to a non-international armed conflict: (1) Under responsible command; and (2) Exercising control over a part of a nation so as to enable them to carry out sustained and concerted military operations and to implement the requirements of Protocol II.

The International Committee of the Red Cross (ICRC), the official custodian of the conventions, does provide some guidance in its commentary, in distinguishing between civil war and mere riots or disturbances. One test suggested by the ICRC for determining whether wartime or peacetime rules apply is to examine the intensity of hostilities. In addition to the intensity of hostilities, the ICRC suggests considering such factors as the regularity of armed clashes and the degree to which opposing forces are organized. Whether a conflict is politically motivated also seems to play an unacknowledged role in deciding whether it is “war” or not.

Knut Dörmann, head of the ICRC's Legal Division opined on the occasion of the Geneva Conventions’ sixtieth birthday that “the vast majority of people support the core principles of IHL and the idea that even wars should have limits,” but that “what we really need is better compliance with the law.” Regardless of the legal justifications for — and limitations upon – such operations, the ICRC found through an opinion poll in eight nations affected by conflict and violence that, in reality, “few [polled] are aware that the rules exist,” and that “some doubt that the law has a real impact on the ground.” Armed conflict has not only legal ramifications but also practical impacts of death, destruction, displacement, and despair. As we examine — and implement the spirit and the letter of the Geneva Conventions, perhaps we should heed the words of Sun Tzu from many centuries prior:

The art of war is of vital importance to the State. It is a matter of life and death, a road either to safety or to ruin. Hence it is a subject of inquiry which can on no account be neglected.
— Sun Tzu, The Art of War, 490 B.C.

Kevin Govern is a professor at Ave Maria School of Law. He began his legal career as an US Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the U.S. Government, Department of Defense, or Ave Maria School of Law.
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