The Law in War: A Concise Overview

When we first plotted our plan to write the 1st edition of this book, our goal was to offer an accessible narrative overview of international humanitarian law for both lawyers and non-lawyers interested in the topic. To that end, the original 2018 edition addressed key issues concerning the international legal regulation of armed conflicts, whether inter-State or involving non-State organized armed groups.

The second edition of the Law in War: A Concise Overview, to be published by Routledge on March 28, 2023, seeks to build on that original foundation and consider the impact of the complex conflicts that continue to challenge international peace and security. Indeed, the mere fact that it is reported that in 2021 alone there were 54 State-based armed conflicts and 76 non-State conflicts highlights the importance of understanding the law relied upon by the international community to mitigate the suffering these conflicts inevitably produce.

Building on the 1st edition, our goal is to enhance the value of this book as a resource for a broad spectrum of potential users, to include students of international humanitarian law and international relations, practitioners of public international law and international relations, and, of equal importance, military professionals interested in expanding their understanding of the law that they must navigate in complex operational environments.

International humanitarian law may be slow to evolve, but it must nonetheless be responsive to the challenges to peace, security, and humanity manifested by armed conflicts. Sadly, the 2022 extension of Russia’s invasion of Ukraine has and continues to provide powerful evidence of the immense inhumanity of war; inhumanity that is exponentially exasperated when law is pervasively disregarded. This conflict also profoundly impacted the operational focus of armed forces around the globe and the legal advisors responsible for helping them prepare for potential missions.

Attention and interest shifted away from the counterterrorism and counterinsurgency operations of the past two decades toward inter-State armed conflict, elevating to prominence international legal issues that had long been considered dormant. Importantly, Cold War tensions have been revived, not only between the West and Russia, but also regarding China. The past five years has also witnessed a continuation of nearly 40 years of hostilities involving Iran against the United States, Israel, and Saudi Arabia. This has included a series of claimed defensive actions including a controversial January 2020 U.S. drone strike in Iraq that killed Iranian Major-General Qassem Soleimani, and an Iraqi militia leader, Abu Mahdi al-Muhandis. In the meantime the jihadist threat continues, particularly from ISIS, with its expansion in the Sahel and other regions of Africa. As a result, counterterrorism action has not abated, as was seen in the operations resulting in the 2019 death of Al-Qaeda leader Abu Bakr al-Baghdadi in Syria  and the 2002 targeted killing of Ayman al Zawahiri in Afghanistan.

Other “Laws in War”

Against this backdrop the new edition not only updates the original text dealing with international humanitarian law, but also expands its analysis to address two other major legal frameworks impacting on armed conflict: international human rights law and the law governing the recourse to war (the jus ad bellum). A new chapter on the humanitarian and human rights law interface outlines their common roots and terminology; the different rules governing detention, the use of force and accountability; the extensive inclusion of human rights norms in humanitarian law; the lex specialis (special law) debate, and the different often complex approaches undertaken by human rights tribunals and courts in addressing armed conflict. This chapter also looks at crime and policing during armed conflict, the law enforcement role carried out by military forces and the collection of evidence on the battlefield as part of the accountability and war crimes prosecutions process.

With the existence of an armed conflict being required for the operation of humanitarian law, the analysis explores the theories of when armed conflict begins and ends, not only in terms of traditional inter-State and non-international armed conflicts, but also during the exercise of State self-defense. How an armed attack and resulting State defensive response relates to when an armed conflict occurs has become an increasingly important issue in the post 9/11 period. This has occurred not only in respect of non-State actors, but also inter-State conflict (for example, the Soleimani drone strike). The text also addresses the continuing application of the law governing the recourse to force during subsequent hostilities and its relationship with humanitarian law, an under explored issue that is attracting more attention in the international legal community.

The War in Ukraine

The 2022 phase of the Russian invasion of Ukraine has presented numerous both long-dormant and in some cases unique humanitarian law challenges. As a result, diverse issues such as qualified neutrality, the status of foreign nationals serving in military forces, the status and liability of so-called mercenaries and other military and security actors, and the treatment of both organized resistance forces and civilians in occupied territory are introduced or expanded upon in this edition. With both States being Parties to the 1977 Additional Protocol I to the 1949 Geneva Conventions the new edition focuses more on the direct the application of Additional Protocol I to inter-State warfare as a matter of law, rather than reflecting customary international law which had frequently been the approach in the international legal community.

Combatants and Unprivileged Belligerents

Driven in part by the 2020 release of the ICRC Updated Commentary on the 1949 Geneva Convention III on Prisoners of War and the importance of Additional Protocol I in the Ukraine/Russia conflict, the book has expanded its discussion of combatant status and qualification and the concept of unprivileged belligerency. The analysis outlines the obligations for regular State armed forces to meet the same four conditions applicable to militia, members of volunteer corps and organized resistance movements belonging to a State as enumerated in Article 4A(2) of Geneva Convention III. At the same time, it highlights the lack of international consensus concerning the potential for a group denial of POW status to State armed forces.

The text also wades into the complex issue of how to characterize civilians and military personnel who engage in hostilities without qualifying for combatant/prisoner of war status. Such individuals are often called unprivileged belligerents. The book also addresses when civilians accompanying the armed forces qualify as POWs and the consequences of exceeding limits on their permissible activities.

The activities of the Wagner Group in Ukraine, the Central African Republic, Syria and beyond have again brought to the fore the challenges associated with increasing reliance on private military contractors and security companies (so called PMSCs) in contemporary conflict. As this book discusses, many lessons were learned and steps subsequently taken by the international community in relation to oversight and accountability of PMSCs in war zones following the experiences of the Iraq and Afghanistan. This edition outlines some of these steps, including the work of the International Code of Conduct for Private Security Service Providers Association (ICoCA) that was established in 2013 to ensure that that PMSCs comply with international humanitarian law and human rights law.

Attacks and Targeting

Among the new case law dealt with in the second edition is the 2019 International Criminal Court case, The Prosecutor v. Bosco Ntaganda, which dealt with the meaning of “attack” under international humanitarian law. The authors endorse the view that the meaning of attack should be restricted to violence directed against an adversary as the most accurate interpretation of international humanitarian law.  In addition, the targeting chapter expands on the material provided in the first edition and includes matrices for the targeting of people and objects respectively. The matrices set out an analytical framework for each action.

Weapons

In his 2022 book, War Transformed (p. 42), Major-General (Ret’d) Mick Ryan has suggested that technology is likely “to have the greatest impact on twenty-first-century military affairs.” The new edition expands the weapons chapter to address artificial intelligence and autonomous weapons, nanotechnology, as well as directed energy, hypersonic and high-speed weapons. International efforts to ban nuclear weapons under the Treaty on the Prohibition of Nuclear Weapons is also addressed. Here the conflict in Ukraine has also had an impact with a renewed focus in the book on missile and rocket warfare.

Accountability

Finally, as reflected in the three chapters dealing with war crimes, command responsibility and international justice, we presently find ourselves in a new accountability epoch. With the various UN and hybrid tribunals winding up their operations, focus today, more than ever, is on how effective the International Criminal Court (ICC) in tandem with national jurisdictions, can be in closing the impunity gap for war crimes. The conflict in Ukraine has given renewed hope that the ICC and States working together can bring perpetrators of war crimes to justice. The jury is still out, but as the new edition of the book discusses, the fact that international and Ukrainian prosecutors are already able to gather evidence of alleged war crimes during the conflict itself rather than at the end of the hostilities could be critical to the success and range of potential cases brought to trial. This new era of cooperation between the ICC and States is welcome, and hopefully the Ukraine experiences will set a successful precedent for the repression of war crimes in whichever battlefield they occur.

Conclusion

As authors we have endeavored to enhance the value of this text by striking a useful balance between content and accessibility. It is accordingly our hope that the 2nd edition of The Law in War will appeal to anyone dealing with a variety of domains such as international humanitarian law, international human rights law, international relations, and military science. It is also intended to provide a valuable professional development resource for those involved in the planning, execution, and critique of military operations across the spectrum of conflict.

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Geoffrey S. Corn is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law.

Ken Watkin served for 33 years in the Canadian Forces, including four years (2006-2010) as the Judge Advocate General.

Jamie Williamson is the Executive Director of the International Code of Conduct for Private Security Service Providers Association.

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