“So long as there are men there will be wars.” So, famously, claimed Albert Einstein. Based on the prevalence of armed conflicts in 2012 it is hard to contest this assertion. For there is scant evidence that humankind has grown tired of bloodshed in combat whether within or across national borders, despite aggressive war between nations having been ‘abolished’ — in theory at least — by the 1945 Charter of the United Nations (UN).
On the 65th anniversary of the adoption of the Universal Declaration of Human Rights, the Geneva Academy is launching its War Report: 2012, the first publication dedicated to identifying and classifying all armed conflicts that occurred in a calendar year in accordance with international criminal and humanitarian law. It therefore determines whether a situation of armed violence amounts to an international armed conflict (including foreign military occupation) or a situation of non-international armed conflict. We found 38 armed conflicts during the year, across 24 states and territories. This is not to say that other works do not discuss conflict or war — quite the opposite of course — but none has explicitly sought to apply international legal criteria to their determinations.
Why does this qualification matter? For two critical reasons. First, once an armed conflict exists under international law, there are important implications for the use of force. Generally, parties to an armed conflict may resort to weapons and tactics — and the use of lethal force — that would be almost unthinkable (and invariably unlawful) in a situation of law enforcement. The international rules governing law enforcement, especially human rights law, allow intentional use of lethal force (employing firearms) only in truly exceptional circumstances: when strictly unavoidable to protect life. The protection of those caught up in armed violence is a paramount consideration. Not so in an armed conflict. The conduct of hostilities in an armed conflict may use aerial bombings, artillery and mortar shelling, and firing of assault rifles that will foreseeably lead to civilian deaths and injuries but which will not violate international humanitarian law (as long as they are not ‘excessive’ compared to the military advantage expected). We should therefore be cautious and precise before we claim that the requisite threshold has been met.
Second, in an armed conflict the commission of a war crime amounts to an international crime that is punishable by national and international criminal tribunals. Accordingly, some may rush to declare an armed conflict on the basis that this will — it is hoped — lead to accountability for acts of appalling brutality: murder, rape, and torture, often committed on a shocking scale. While well intentioned, this is, I would argue, a misjudgement. Of course, judicial prosecution for war crimes is critical to minimise abuse and to render some form of justice to the victims. As the War Report explicitly notes, such prosecutions are the rare exception to the rule and we will always argue fervently for international justice to be done and to be seen to be done.
Even when the use of force by belligerents is permitted under international law, it may still be restrained, especially by the continued application of human rights law to contain what constitutes the conduct of hostilities, and then to constrain what acts of violence may lawfully be committed during such hostilities. Protection of civilians in armed conflict has become a slogan that needs to be given greater clarity and focus. Let us tackle impunity, for it is all pervasive. But let us not "cry havoc and let slip the dogs of war" where we are not legally obliged to do so. This will not save lives and limbs.
The War Report: 2012 is published by Oxford University Press.
About the author
Stuart Casey-Maslen is Head of Research at the Geneva Academy of International Humanitarian Law and Human Rights. He is an international lawyer specialising in weapons law and the international law of law enforcement. Stuart holds a doctorate in international humanitarian law from the University of Tilburg in the Netherlands and a master’s degree in international human rights law from the University of Essex in the United Kingdom