Of Hague Law and Geneva Law

For specialists of the law of armed conflict, the term “Hague Law” (HL) designates the rules related to the conduct of hostilities, the so-called means and methods of warfare. Meanwhile, the term “Geneva Law” (GL) refers to the rules concerning the protection of persons hors de combat or in the hands of a belligerent party. The HL is geared towards the “military” events while the GL is calibrated on the “peace-time-like” rules, with a distant human rights flavor, for protecting persons situated aloof from battlefields.

In still simpler terms, there is law of the battlefield and law outside the battlefield. To the latter the law of neutrality could then also be added. Historically, the HL is the older branch; over centuries, the law of war concentrated on the hostilities and matters akin to it, e.g., the exchange of prisoners. The issue was not protecting prisoners, but rather the ability to bring prisoners into the gamble as a mass of exchange, as if they were hostages. It is only in more modern times that the fate of the prisoner as a human being and human suffering have aroused public concern. It is therefore mainly in the 19th century that GL developed significantly.

The aim of this post is to draw some attention to legal differences between both branches. The differences cannot be broken down to every single provision of HL and GL. The following considerations are situated on a “macroeconomic” and not “microeconomic” level, to borrow a language from another social science. Because of constraints of space, I present only three distinctions, believing that these capture the main aspects of the subject matter.

The Legal Significance between HL and GL

None of the respective rules of HL and GL were ever neatly separated in the modern law of war and in its various treaties and conventions. Sometimes the Additional Protocols (APs) of 1977 are pinpointed as the turning point when both strands of the law were finally brought together in a single instrument that contains some provisions of HL (see e.g., AP I, art. 48) and other rules of GL (see e.g., art. 8).

This view is not correct. In fact, both branches of the law were conceptually distinguished but not physically separated. Thus, in the Hague Regulations of 1907, annexed to the Hague Convention IV on land warfare, there are emblematic sections on HL (notably art. 22), which have given the HL name to this branch of the law, and other sections on GL (notably art. 4 on prisoners of war), which are less known because they were quickly outdated. Sometimes, it is merely scattered provisions and not wholesale sections that are situated in the “wrong” environment.

Thus, emblems protecting against attack belong to the HL and yet are most often regulated in a GL surrounding, namely in the Geneva Conventions of 1949 (GC), which is the most salient place of expression of GL (see e.g., GC II, arts. 41-43). Another example is GC I, Article 21 which sets out first the protection of hospitals and sanitary installations against attacks or impairment. It then provides that in case these installations are misused for “acts harmful to the enemy,” they lose their immunity and are liable to attack (“protection ceases” in such cases). It also says that a warning and grant of reasonable time is necessary to give the persons running the installation time to curb the activities complained of and to possibly avoid the devastating effects of an attack for the injured and sick. This warning provision is stricter than the one in Article 57 of AP I. The latter provision requires warning “unless circumstances do not permit;” the former does not contain the saving clause and is thus stricter, requiring the warning and the reasonable time as a matter of principle. In legal terms, on this issue, Article 21 of GC I contains a lex specialis with respect to Article 57 of AP I.

Can or must it therefore be said that the distinction is merely academic or more broadly solely didactic? This would be true if the distinction rested on a classification made for pure teaching reasons. It is manifestly practical to look on the one hand to what happens on the battlefield and on the other to what happens in the relations with adverse military or civilian persons outside the battlefield. But still, are there also some legally relevant differences between the two sets of the law of armed conflict?

Difference I: Normative Structure, Contextual v. Firm Obligations

In most parts of the HL, the obligations of the belligerent are of a contextual nature. International humanitarian law (IHL) sets out the criteria under which a commander or any other operator must approach a question, leaving it to the commander or operator to concretize the normative injunction to the facts at hand and providing that commander or operator with a significant margin of appreciation. It stands to reason that there are hard-and-fast-type rules in the HL, e.g., in the context of certain weapons prohibited under treaties. However, the main rules of IHL in this area are open-ended. That is the reason why it is often so difficult to respond to impatient journalists whether an attack is contrary to IHL or not.

We would need contextual elements, most often not publicly available, to give a more than fully speculative or utterly tentative statement. Consider for example military objectives (targets) under Article 52 of AP I. Whether an object fulfils the conditions to be a military objective depends not only on its contribution to military action, but also on the military advantage of its destruction or neutralization it at the time of its attack. Military advantage depends on the assessments of the attacker.

Consider further the famous incidental or collateral damages provisions under Article 51 of AP I. Here the equation balances between the expected (not the actual) collateral damage and the expected (not the one finally obtained or not obtained) military advantage. In other cases, there are factual elements involved, which again induce a contextual regime. For instance, in addition to the rules specifically applicable to hospitals, it is necessary to know whether there were military activities in a hospital and what was the kind and importance of these activities to design an answer as to the lawfulness of attack on that hospital. Finally, there are also often exceptions to the main rule, softening or contextualizing it. Thus, there are objects under special protection, again such as hospitals, but in exceptional circumstances their attack is permitted. Look also to Article 56 of AP I concerning installations containing dangerous forces.

This “contextuality” of most HL rules is not just an abstract legal characteristic. It has practical consequences. The most known one is that prosecutors more seldomly indict persons for violations of such rules than for GL rules. It is indeed significantly harder to prove the elements of crime when the rules are so contextual and so flexible, rather than to prove that a prisoner of war has been maltreated, conduct which is always and with no exception prohibited.

That the HL has this structure is not a matter of accident or of legal incompetence. Battlefield situations involve vital interests and are extremely varied. Battlefield decision making involves myriad factors, a complexity that cannot be reduced and hammered into hard and fast rules. If it were, the rules would be irrelevant for the actual conduct of hostilities. The only way out is to devise flexible rules designating the relevant criteria with which the commander and their legal advisor must work to take concrete decisions in the various situations arising. This can and must indeed be expected; but not more.

Conversely, GL is mainly built on ordinarily structured legal rules with a clear legal injunction. This also means that there are more rules of GL, because they are more detailed. They do not just set out criteria to be applied in concrete situations; they set out duties which can and must be followed according to a blackletter injunction. The bulk of HL rules on attacks can be found in Articles 48-60 of AP I (and 1907 Hague Regulations, art. 23). The bulk of GL rules can be found in the GC of 1949, which in their sum contain more than 500 provisions (the annexes included). Thus, for example, the torture of prisoners of war is prohibited (GC III, art. 13 (1) ). This is a hard and fast rule. No context, no exceptions, no balancing. Most rules under GC III, to remain with this example, set out duties of the detaining power by saying that this power “shall” do this or that. This normative structure does not hold for all GL provisions but is a quite common marker of them. The HL is a law of principles; the GL is a law of rules. This explains well the propensity of prosecutors to indict GL war crimes and to be more prudent about HL war crimes.

Difference II: Normative Structure – Negative v. Positive Obligations

Traditionally, the HL is erected around “prohibitions.” The law is not there to tell the belligerent all the means and methods it can use in warfare. It is there to carve out of this generally permissive field some means and methods which ought to be prohibited because they are too destructive and devastating. This normative structure is visible in the most general principle of the HL, namely the principle of limitation or that “not all means and methods to injure the enemy are permitted” (e.g., 1907 Hague Regulations, art. 22; AP I, art. 35). Under the benevolent umbrella of the Martens Clause, the structure of the HL remains profoundly marked by a Lotus-approach. What is not prohibited, is at least very probably permitted. In other words, the HL embodies mainly negative obligations, prohibitions, abstentions. They include: not to use certain weapons; not to attack other objects or persons than military objectives; not to cause excessive collateral or incidental damage; not to attack objects under special protection; not to use perfidy; etc.

The GL is based mainly (not solely) on positive obligations, obligations to do something, to provide care and help to persons injured or sick, to protect prisoners of war from public curiosity, to care for the hygiene of prisoners of war, to allow visits by the International Committee of the Red Cross, to fill in capture cards, etc. The law is much less marked by limitative prohibitions with residual freedom behind them; it is rather erected on an edifice of some duties of abstention (namely the duty not to mistreat) and a bulk of duties to act according to express provision. The Martens Clause has here also a firmer standing. After all, it was initially devised to the benefit of the civilians in occupied territories.

This difference induces a difference of legal approach for the lawyers engaged in one or in the other field. The tendency in the HL is to look for “impediments” (i.e., that conduct is impeached by some contextual or absolute rule), whereas in the GL the tendency is to look for “rules” and most opportune (humane) treatment.

Difference III: Distinction Jus Ad Bellum and Jus In Bello

There is a canonic distinction between jus ad bellum (JAB) and jus in bello (JIB) in international law. The main reason for keeping separate the two strands is that considerations as to the “when can I lawfully use force” (JAB) do not interfere with the question as to “how do I have to use force” (JIB). In this way, the equal application of the law of armed conflict by all belligerents can be ensured, whatever their cause (aggressor and aggressed, etc.).

However, in other contexts on equal application of JIB by all belligerents, the two areas of the law entertain complex and multiple relationships. I submit that the degree of openness of the HL for JAB-considerations is marginally greater than the degree of openness of GL. The latter contains the main rules of “humanitarian treatment” and thus the distance to JAB considerations is maximal.

This relative openness of HL can be scrutinized in the law of self-defense. This is an example where IHL/HL is used for the purposes of JAB. In order to determine whether an action in self-defense is proportional in the sense of the JAB requirement, the International Court of Justice in the Nuclear Weapons advisory opinion of 1996 (para. 42) had recourse (among other aspects) to the respect for IHL, and mainly the HL. The argument was that if attacks are disproportionate in the sense of IHL (collateral damage), and if the number of such disproportionate attacks is high, that fact can impact the law of self-defense to make that self-defense itself disproportionate in the sense of the JAB-requirement.

Another example shows the opposite, namely that JAB also intervenes in the body of IHL / HL. What if there is a railway line used to perpetrate international crimes, e.g., to deport persons to concentration camps where these persons will be killed? If such lines are not used militarily, they are manifestly not a military objective under Article 52 of AP I and cannot therefore be attacked. It can however be argued that the UN Security Council, under its Chapter VII JAB powers, could authorize a belligerent to attack such lines. This lex specialis adds a target to be attacked to the ones designated in Article 52 of AP I. If the resolution is framed in terms of obligation, its injunction could be construed to have precedence over the obligations under Article 52 because of Article 103 of the UN Charter. The corresponding obligation under Article 52, which is set aside under Article 103 of the Charter, is the obligation to attack only military objectives. As can be seen, there are interesting legal questions lurking beneath the surface.

Concluding Thoughts

As a robustly codified regime of law, the law of war can easily overwhelm those new to its ways. And while it has never been a textually (or geographically) accurate delineation of the rules and instruments that regulate armed conflict, the HL-GL distinction remains a helpful organizational framework for appreciating this highly practical body of law. On a deeper and perhaps more doctrinal level, appreciation of the attributes of the Hague and Geneva regimes, including their respective normative structures and relationships to the jus ad bellum, guarantees a sounder application of each.

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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC.

Photo credit: Staff Sgt. Jacob Sawyer