Law of Armed Conflict and Basic Principles

Definition and Types of Armed Conflict

The concept generally used instead of "war" is the concept of "armed conflict". Article 2 of the United Nations Charter, which was put forward after the terrible consequences of World War II in order to prevent the human community from experiencing such a war again, prohibits the use of armed force by one state against another state, except for the right of individual or collective self-defence and the decisions of the United Nations Security Council. In the face of this provision of the United Nations Charter, the use of the concept of "war" in the international arena is particularly avoided. In the Geneva Conventions, which contain fundamental regulations on the subject, the more general and inclusive concept of "armed conflict" is used instead of war. In this way, it is possible to avoid debates on the legal definition of the concept of war. It is also clear that armed conflict is definitely present in an environment where war exists. States are also reluctant to use the word "war" today. The concept of "armed conflict" is used when armed elements that are mutually hostile and hostile to each other deliberately carry out military operations against each other. The word "deliberately" in this definition is used to exclude erroneous border violations and similar situations at borders. Armed conflicts may be between states, between state authorities and organised armed groups or between organised armed groups only. 

While some armed conflicts are recognised as international armed conflicts, others are non-international armed conflicts. When armed conflicts are between states, when one state attacks targets in the territory of another state or occupies the territory of another state, or when a formal declaration of war has been made without a conflict, such armed conflicts are considered "international armed conflicts". In such a situation, it does not matter whether or not the states involved recognise the situation as a conflict or how they define it. 

Sometimes armed conflicts occur within a state between state authorities and armed groups or between different armed groups in which state authorities are not involved. Such conflicts occurring within the territory of a state are recognised as non-international armed conflicts. Internal tensions of low intensity, social demonstrations, community events and disturbances and minor disturbances are not considered as armed conflicts. 

Law Applicable in Armed Conflicts

The law of armed conflict consists of legal rules that were born in the battlefield and are based on customary law. For example, the "white flag" rule, the rule of "not touching those who surrender and beg for mercy", the rule of not harming children, the elderly, women, cultural sites and places of worship are rules that were born on the battlefield and are known by all of us. These rules are easy to apply in practice. Almost all cultures have adopted and implemented these rules. These unwritten rules were later codified and written down in international conventions. The implementation of these rules is often effective in reducing the intensity of conflicts and reaching a ceasefire as soon as possible.  On the other hand, these rules are also compatible with principles of warfare such as the establishment of the centre of gravity, tactical cover and deception, and simplicity. For example, avoiding militarily insignificant targets will not only minimise civilian casualties but also avoid unnecessary military actions. These rules remind soldiers and their commanders of the minimum standards to be observed, reduce the number of war victims and suffering, allow combatants to act in accordance with their conscience, and protect innocent civilians. They will protect civilians, medical personnel, clergy, surrendered prisoners of war, wounded and casualties, as well as preventing the use of more violence than is necessary to accomplish a military operation. Most of these rules are set out in a total of four Geneva Conventions and two additional protocols to these conventions. The conventions are binding and impose obligations on all members of the armed forces and political authorities. Most of the states in the world are parties to the Geneva Conventions, and Turkey is a party to four conventions, with the exception of Protocol No. 2. 

Although it is stated that separate rules of law apply to international conflicts and separate rules of law apply to non-international armed conflicts, there is a wide area and legal order where common rules of law apply to both types of armed conflicts. Customary law constitutes the beginning of the rules existing in the common area. The basis of customary law is clearly stated in the common Article 3, which is regulated in the same way in each of the four Geneva Conventions, which provide rules for the protection of the sick and wounded, prisoners of war and civilians. This article clearly stipulates that "those who abandon their arms in areas of conflict, the sick and wounded and casualties shall be treated humanely without discrimination as to colour, religion, sex, birth or any other similar distinction, and the sick and wounded shall be treated". Of the two protocols annexed to the Conventions, the second protocol contains rules applicable only to non-international armed conflicts.  

As soon as armed conflicts begin, the rules of the law of armed conflict will also begin to apply. These rules will be applied even if an official declaration of war has not been made, but an armed conflict has not actually begun. Similarly, when an occupation begins, these rules will also apply even if the occupation is not resisted. When hostilities and occupation end, the application of the rules of the law of armed conflict will also cease.  The protection of prisoners of war held by the parties will continue under the Geneva Conventions. 

Basic Principles of the Law of Armed Conflict 

Just like the principles of warfare such as offence, defence and retreat, the law of armed conflict also has basic principles. These principles include simple and easily understood rules that can be easily fulfilled by a soldier in any situation on the battlefield. These principles strike a balance between ethical values and military requirements. The basic principles of the law of armed conflict should be taken into account in the assessment, planning and implementation of military operations. According to general acceptance, these principles are: distinction, which includes the separation of combatants from the civilian population; proportionality, which includes the use of force only against combatants and to the extent necessary to remove them from the battlefield; military necessity, which allows the use of force to the extent necessary to achieve the military operation; limitation, which prevents the use of excessive force; and humanity, which must always be taken into account. 

Distinction of Civilians from Combatants  

This principle is based on the fact that "the main objective in all conflicts is the weakening of the military power of the other side". Article 25 of the Hague Convention makes this principle explicit. It prohibits attacks on defenceless villages, towns, settlements and buildings. Articles 48, 51 and 52 of the Additional Protocol to the Geneva Convention contain similar provisions. Warring parties must take measures to ensure the separation of combatants and civilians. For example, this would not be possible in a nuclear attack. The International Criminal Court also recognises direct and deliberate attacks on civilians as war crimes. Regular bombing of civilian areas and the ill-treatment of children and women will result in a violation of this principle. In attacks on military targets, measures should be taken to minimise the damage to the environment and the surrounding area. Military equipment, vehicles, buildings, positions and military forces that contribute to military operations due to their location, nature and purpose, and whose partial or total destruction provides advantage to the other side in military operations, shall be considered as "military targets". In this context, the Ottawa Convention prohibits the use of anti-personnel landmines in order to prevent harm to civilians. 

Proportionality Principle

If civilians in the vicinity of the target would be harmed in an attack, then the attack would be considered disproportionate. The prevention of disproportionate attacks is a rule of customary international and non-international law.  Organising an attack with the knowledge that civilians will be killed or injured, or that civilian structures and equipment will be damaged, constitutes a violation of this rule. According to the International War Crimes Tribunal, when the expected benefit or military advantage of an attack is compared with the damage to civilians, if the civilian damages are excessive, this attack will be considered a disproportionate attack. Here, the concept of military advantage gains importance. Military advantage must be a concrete, substantial and highly probable advantage. Otherwise, this principle can easily be abused. Before attacking military targets, civilians and civilian vehicles must be removed from the vicinity of these targets. For example, nuclear attacks would violate the proportionality principle of the law of armed conflict due to the damage they would cause to civilians and the environment in which civilians live.  Sometimes this principle may be violated by the use of excessive force against military targets due to damage to the environment and civilians. For example, in order to neutralise two enemy soldiers, the targeting of the building where the enemy soldiers are located together with civilians, without taking measures to evacuate the civilians inside, would result in a violation of this principle. In order to prevent the disproportionate use of force, the parties should take all measures to evacuate the area. The evacuation of civilians to safe areas, the use of digital means of warning, and keeping military units and targets away from densely populated areas will enable the implementation of this principle. Weapon methods and forms of attack that will cause the least harm to civilians should be preferred. For example, using a tank in a mission that can be accomplished with a sniper weapon may harm civilians. Poor planning and wrong intelligence may result in a violation of this principle. 

Military Necessity Principle 

This principle was first enshrined in the preamble of the 1868 Sen Petersburg Declaration. In the law of armed conflict, lawful targets are those that weaken the enemy's armed power and existence. Enemy soldiers are the most important of these. A similar provision is regulated in Article 23 of the 1923 Hague Convention. Destroying or capturing the enemy is lawful if and only if it is substantially necessary according to the legal rules of armed conflict. Any action that is not militarily necessary is not in accordance with the law of armed conflict. Unnecessary damage to military targets would be a violation of this principle. An attack due to poor planning, laxity and negligence will result in a violation of this principle if it unnecessarily serves a military need. For example, it is a requirement of this principle not to damage cultural heritage and structures, not to attack places of worship and hospitals, and not to damage occupied places. Because damaging these structures will not fulfil any military need.

Limitation Principle

This principle states that the weapons and methods to be used in conflicts should be limited.  Weapons and methods should not be used in conflict if they would cause excessive destruction, suffering, injury or incurable or undetectable disease. Weapons that cause more injuries than necessary should not be used. Weapons are intended only to drive the enemy off the battlefield. The use of weapons that will cause the death of the enemy by inflicting suffering, or that will cause incurable diseases or injuries is a violation of this principle. This principle does not mean that every weapon which, when used inappropriately, may cause undesirable consequences is prohibited. In essence, this principle means that not all methods and weapons can be used freely on the battlefield and that there are limits. 

The Principle of Humanity

The principle of humanitarianism allows unnecessary suffering to be avoided. This principle acts as a brake on military necessity. It creates a balance between military necessity and the avoidance of unnecessary suffering. It enables the protection of personnel such as the sick, wounded, prisoners of war, medical personnel and religious officials. It prevents people from being treated differently on the grounds of nationality, race, religion, belief, sex, etc. It requires everyone to be treated humanely. It ensures that only combatants are attacked, civilians are protected and unnecessary damage is not caused.