The Power of Perspectives

The Canadian Bar Association

Emily Alderson

War as a political, not a legal concept

July 27 2016 27 July 2016

 

As tensions have mounted this summer between law enforcement and black communities, there has been growing concern that the United States is headed toward a “race war”. The term “war” evokes a special state of emergency, where civil liberties can be restrained and violence is permitted. But in this case “war” is a political term, not a legal one.

While some media might speak of a race war (small “w”) just like the Bush administration spoke of a “war on terror”, we shouldn’t let the hyperbole distract us from the reality. Conflict and crime are governed by two very separate bodies of law. Police forces are not combatant armies in an armed conflict. When IHL isn’t functioning to protect people from the worst excesses of violence, regular law should be functioning to protect people from all excesses.

War is legally defined as international armed conflict. A “civil war” is correspondingly called a non-international armed conflict. Where an armed conflict is taking place, a special body of law kicks in creating special rights and responsibilities for those involved. This is called international humanitarian law (IHL), also referred to as the law of armed conflict (LOAC, the term preferred by the Canadian military).

Contrary to popular belief, conflict is not the complete absence of law. Although combatants are permitted to kill other combatants, IHL aims to limit the worst excesses of conflict. IHL is a modern part of the longstanding customary body of law called jus in bello – Latin for “rights in war” – which governs conduct during conflict. This is not new: throughout history, society has always developed ways to put limits on conflict. For example, the medieval knights’ code of chivalry placed rules on combatants that were based on honour. Some acts, such as killing women and children, have been considered beyond the pale across time and cultures. 

Today, the custom of IHL is largely codified. The most important IHL treaties are the four Geneva Conventions and their three Additional Protocols. The Geneva Conventions enshrine rules on the treatment of prisoners of war, shipwrecked combatants, the protection of hospitals, and the protection of civilians, among other things. The founding treaty of the International Criminal Court creates international crimes out of genocide, war crimes and crimes against humanity. Fewer rules apply to non-international armed conflicts because they fall within the purview of a single state. However Article 3 of each Geneva Convention enshrines minimum protections for those conflicts too.

For these rules and protections to be invoked, armed conflict must be defined. While there is no one agreed-upon definition, the highly influential International Committee of the Red Cross uses the following:

1. International armed conflicts exist whenever there is resort to armed force between two or more States.

2. Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.

The point of this discussion is to highlight the exceptional nature of IHL. Where armed conflict does not exist, normal law continues to apply. This includes the criminal law, complete with its inherent concept of due process. Governments can, of course, change their domestic laws. Even drastic measures like invoking a state of emergency can be done legally. But any changes must be done according to the correct domestic procedures.  

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