War as a Non-State-Centric Concept of Contemporary International Law
Editors’ note: This post is drawn from the authors’ article-length work, “International Law’s Premature Farewell to the Concept of War” appearing in the Brazilian Journal of International Law.
There is general consensus amongst practitioners and scholars that the concept of war is no longer a central notion of international law. Some even go so far as to state that it was effectively abandoned after the Second World War due to its displacement by other concepts, such as the prohibition of the use of force and armed conflict (both international and non-international).
It seems to us, however, that this contention deserves critical review. This is because the State-centric and excessively positivist approach that underlies the mainstream view underrates both relevant “black letter international law” and current developments. These suggest that war has a broader—and not a narrower—meaning than armed conflict because it is not a concept that is specific to international humanitarian law (IHL), but rather of general international law.
The “Theory of Farewell”
There are, of course, good arguments for the “theory of farewell” to the concept of war. It suffices here to briefly summarize them. First, one can point to the fact that the UN’s founders deliberately avoided any mention of the term “war” in its foundational treaty, adopted on June 26, 1945. An exception was made in the preamble, where the organisation’s utmost concern is described as “to save succeeding generations from the scourge of war.” To this end, the UN Charter establishes a system of collective security with the prohibition of the use of force as its central pillar.
The UN Charter makes no reference to the (still in force) Kellogg-Briand Pact of August 27, 1928, in which governments declared “that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” Nor does the Charter refer to any other international treaty on this subject such as, for instance, the Hague Convention (III) Relative to the Opening of Hostilities, of October 18, 1907, which obliged State parties to formally declare war before taking up arms.
Indeed, governments all too often denied the applicability of the above-cited conventions by arguing that they were only taking measures “short of war,” not requiring any formal declaration. Alternatively, they insisted on the “natural right” of self-defence in reaction to a (presumably) imminent or ongoing military intervention to justify warfare. Hence, it was a wise step to prohibit any use of (armed) force and even the threat of it, while conditioning the exercise of the right of self-defence on the criteria established in Article 51 of the UN Charter (the occurrence of an armed attack).
These changes in the ius contra bellum made it difficult to uphold the classical division between the law of peace and the ius in bello that underlay centuries of public international law, as well as the assumption that the state of war automatically suspends all peace time obligations (such as those originating from commercial contracts between States). In practice, even States suffering military interventions had a vital interest in avoiding this preclusive legal effect, as they needed to mobilize financial resources for resisting the aggressor. For these and other reasons, the time to abandon this doctrine had come.
Furthermore, the elimination of the concept of war from the UN Charter also made it desirable to update the concept in the ius in bello. This opportunity came with the adoption of the four Geneva Conventions of August 12, 1949. States agreed that these conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” So, while the possibility of declaring war even before the commencement of hostilities is not excluded and therefore has certain legal effects, it is, above all, the factual existence of inter-State armed hostilities that became the central trigger for the imposition of obligations upon warring parties. Thus, the former ius in bello was remodelled into the international law of armed conflict, also called IHL. One of its undeniable merits is its objectivized approach to the state of war, although implicitly still requiring an animus belligerendi.
As is well known, the 1949 Geneva Conventions also introduced the concept of non-international armed conflict in common Article 3, without, however, defining it. This marked the starting point of the (deficient) “two-box approach” in IHL: the classification of a conflict as either international or non-international in character. This approach recognizes, in principle, the extension of some minimal protections to internal or transnational conflicts with or between organized armed groups. Such asymmetric situations were once called “civil wars.” More recently, they have been described as “new wars.” Although both bodies of IHL have converged significantly over the last decades, the “two-box approach” continues to be valid, while the applicability of the law of non-international armed conflict often remains obscure due to the lack of authoritative criteria for its determination and the absence of any international institution responsible for conflict classification. However, the concept of “war” has no immediate relevance in this context. What is important is the factual existence of armed hostilities.
One must admit, though, that this conclusion is also the result of an excessively positivist approach, primarily based on historical arguments focusing on the ius contra bellum and the ius in bello. It is quite telling that numerous essays and textbooks on international law still cite Lassa Oppenheim´s century-old and State-centric definition of war as “a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.” While other disciplines continue to discuss what constitutes “war” in the 21st century, most practitioners and scholars of international law show little interest in taking a fresh look at this concept. Yet, they would agree that the international order has undergone profound transformations since the Second World War. In this respect, the emergence of international human rights law (IHRL) and the challenges posed by violent non-State actors, represent two relevant developments that deserve attention.
The Reemergence of the Concept of War in IHRL
If one investigates “black letter” IHRL, it does not take much effort to find numerous references to “war” and the “state of war.” To start with, the European Convention on Human Rights, adopted more than a year after the 1949 Geneva Conventions, on November 4, 1950, allows for the derogation of certain guarantees “[i]n time of war or other public emergency threatening the life of the nation.” Similarly, parts of the American Convention on Human Rights, of November 22, 1969, can be suspended “[i]n time of war, public danger, or other emergency that threatens the security or independence of a State Party.”
Interestingly, these treaties avoid any mention of “armed conflict” as an already well-established concept of IHL. Rather, they uphold the term “war” and treat this as a special case of public emergency, whose legitimate proclamation is not only regulated by IHRL, but also by domestic law. Indeed, the concept of war still forms part of numerous post-Second World War constitutions that could have adopted a “more modern” (IHL-based) approach.
There are numerous other examples for the survival of the “w-word” in IHRL. For instance, the (presumably) abandoned concept of war newly emerged on a universal level years after the entry into force of the UN Charter and the 1949 Geneva Conventions in the UN Convention against Torture, of December 10, 1984. This explicitly stipulates that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war,internal political instability or any other public emergency, may be invoked as a justification” for such inhumane practices. Likewise, the Inter-American Convention to Prevent and Punish Torture, of December 9, 1985, refers to “[t]he existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters.” We have exposed further samples in the more extensive analysis in our article.
Of course, there are also human rights conventions in which this (re)inclusion has not occurred. The most famous is the International Covenant on Civil and Political Rights, of December 16, 1966, whose derogation clause deliberately avoids the “w-word.” It appears only in Article 20 which prohibits “any propaganda of war.” Yet, we can state that the concept of war is far more present in IHRL than the concept(s) of armed conflict.
This conscious disconnection suggests that it might be inappropriate to refer to IHL to determine the current meaning of “war.” Armed conflict seems to be a special case of war; the latter term has a broader scope that transcends what is covered in IHL. It is particularly interesting that the Protocol on Women Rights in Africa, of July 11, 2003, is applicable “in peace time and during situations of armed conflicts or of war.” This underscores the possibility of understanding war as a particularly violent, exceptional state of affairs that is not necessarily covered by IHL. There might be a state of war without the existence of an armed conflict in accordance with the criteria established by this subarea of international law.
One problem is that governments do not define their notion of war in the notifications by which they formally suspend derogable human rights, and nor do international (human rights) bodies in their reviews of these states of exception. This is due to the residual concept of public emergency, which makes it legally superfluous to refer to war. Rather than evaluating whether there is a legitimate state of exception, therefore, the monitoring organs tend to examine only the measures taken by the governments concerned.
Acts of War Perpetrated by Non-State Actors
What, then, might be a timely understanding of the concept of war? This notion has been discussed since ancient times, because scholars like Cicero started to think more systematically about international law.
Of course, the concept must be considered in light of its recent transformations. These include changes caused by the emergence of various powerful non-State actors, such as those that use massive violence to challenge and destabilize governments, State institutions, or even whole nations. In this respect, it might be of minor interest whether we label these actors as criminal, terrorist, guerrilla, militia, etc., or try to categorize them as “organized armed groups” in accordance with the law of non-international armed conflict. Perhaps it is more important to appreciate the practice of numerous governments that have publicly declared war on different types of violent non-State actors, a fact that (according to the dominant view) has no specific legal relevance beyond mere political rhetoric.
Considering the concept of “war” outside of a State-centric context makes sense given the reality that many States—especially those in the Global South—frequently suffer from prolonged armed violence caused by groups who not only challenge the rule of law and the State’s monopoly over the legitimate use of force, but also manage to effectively control significant parts of the population. Often, these groups cannot legitimately invoke the right to self-determination, nor do they possess the quasi-military structures and capabilities required by IHL to qualify as an “organized armed group.” But it is worth considering whether they can, nonetheless, bring into existence a state of exception through the unlawful perpetration of an “act of war.”
In IHL, this phrase (“act of war”) has been largely substituted by the concept of “attack,” defined in Article 49 of Additional Protocol I to the Geneva Conventions, of June 8, 1977. There it means “acts of violence against the adversary, whether in offence or in defence.” It seems to us that such a hostile act, if committed by a non-State actor, must have the threshold quality of an armed attack as required for the exercise of the right to self-defence, so that the aggressed or otherwise affected government may resort to exceptional measures that are, in principle, prohibited by IHRL, such as the use of the State’s armed forces to suppress crime. These measures are often publicly justified by labelling the violence as acts of “war” to make it clear that the State is confronting a “true enemy” and that severe actions are about to follow. Against this background, it seems inadequate and out of touch with reality to treat such governmental declarations of (the state of) war that often succeed an armed attack by a non-State actor as legally irrelevant.
Of course, it is often controversial what exactly constitutes an armed attack. It is also debatable whether there is an international right to use force in self-defence against non-State actors whose actions cannot be attributed to another State. Yet, it is still a relatively objective starting point for engaging in an analysis in which less emphasis is put on the “organizational element,” i.e., the specific characteristics and structures required to qualify as belligerent party.
In this respect, it is interesting to see, too, how violent non-State actors have shaped international criminal law. A critical thinking exercise involves treating crimes against humanity as “war crimes lato sensu.” This is because they require a “generalized or systematic attack against a population” that has been pursued or furthered either by the State or by another organization. According to the International Criminal Court, such an organization must only:
have sufficient means to promote or encourage the attack, with no further requirement necessary. Indeed, by no means can it be ruled out, particularly in view of modern asymmetric warfare, that an attack against a civilian population may also be the doing of a private entity consisting of a group of persons pursuing the objective of attacking a civilian population; in other words, of a group not necessarily endowed with a well-developed structure that could be described as quasi-State.
Hence, a non-State actor—even without fulfilling the criteria of an organized armed group according to IHL—may nonetheless be capable of committing an international crime whose central element is the commission of an attack against a population. What is more, such an attack may often legitimately be labelled as “an act of war” for creating a state of exception that justifies the formal derogation from certain human rights.
These and other developments that we discuss in our article point to the possibility of situating war as non-State-centric concept not only in IHRL, but in the general part of contemporary international law.
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Sven Peterke is a Professor of International and Criminal Law at the Federal University of Paraíba in João Pessoa (Brazil).
Johannes van Aggelen holds a doctorate from McGill University. From 1980 until 2007 he was a staff member of the U.N. Human Rights Department in Geneva, Switzerland.
Photo credit: U.S. Army, Cpl. Joseph Alvarado
