Even in war, there are rules that are supposed to be followed by way of several multilateral legal frameworks that govern warfare and issues like the treatment of combatants and civilians.
Understanding what rules apply to what types of conflicts is important because it can lead to the greatest protections for civilians caught in the crossfire, and greater accountability to perpetrators of war crimes. At a time when two major wars are being waged — in the Middle East and in Ukraine — this understanding takes on a special urgency.
Historically, the laws of war have been divided into two categories: jus in bello that pertains to acceptable conduct in war; and jus ad bellum, which involves adaptable justifications for going to war.
Let’s examine jus in bello, more commonly known as international humanitarian law.
The two primary sources for international humanitarian law are multilateral treaties — including the Hague Convention IV of 1907, the four Geneva Conventions of 1949 and what are known as the Additional Protocols of 1977 — along with customary international law, the unofficial rules governing the conduct of hostilities.
Read more: Can Israel and Hamas be held to account for alleged crimes against civilians?
Three principles
Contemporary international humanitarian law is based on three important principles: distinction, military necessity and proportionality.
The principle of distinction, formalized in the Additional Protocols, refers to military obligations to differentiate between combatants and civilians when military leaders decide who to target.
This requires combatants to distinguish themselves from non-combatants, usually accomplished by wearing uniforms. It also requires combatants to only target military objectives.
Military necessity is used as a guide to determine what counts as a legitimate military objective. This principle is an attempt to balance an aggressor’s need to gain military advantage with minimizing suffering. While mentioned in several multilateral treaties, neither the Geneva Conventions nor Additional Protocols explicitly codify this important concept.
Lastly, the principle of proportionality is an attempt to provide guidance to military commanders about how to balance the value of a particular military objective with humanitarian concerns. Articles 51 and 57 of the Additional Protocols formalize this principle.
Relevance to ongoing wars
Applying international humanitarian law to the Russia-Ukraine war is straightforward. Because the conflict is between two states and both Russia and Ukraine are signatories to all four Geneva Conventions, the conflict is an international armed conflict and those conventions completely apply.
In March 2023, the International Criminal Court issued an arrest warrant for Russian President Vladimir Putin, charging him with war crimes, including the unlawful deportation and transfer of children.
In terms of the Israel-Hamas war, the application of international humanitarian law is more complicated because it’s unclear whether it can be considered an international or non-international armed conflict. If Hamas is an independent militant organization not fighting on behalf of an existing Palestinian state, then the current conflict would be a non-international armed conflict.
That means only Common Article 3 of the Geneva Conventions would apply. This is important because Common Article 3 offers fewer protections to combatants and civilians.
For example, while prisoners of war and civilians must be “treated humanely” according to Common Article 3, that’s a far cry from the full range of protections in existing multilateral treaties.
Palestinian statehood in question
However, if the Israel-Hamas war is considered an international armed conflict, the situation is different. Some argue that because the situation in Gaza involves an ongoing occupation, the conflict is international in nature and the Geneva Conventions apply.
This stance is obviously unacceptable to the Israeli government because it would imply that Palestine is a state and therefore Hamas fighters ought to receive full prisoner-of-war protections.
But even if Palestine is considered a state, there is no reason that Hamas fighters should be considered prisoners of war. Geneva Convention III is quite explicit about who qualifies for that status.
The convention states that all those taking part in hostilities must conduct “… their operations in accordance with the laws and customs of war.”
The Oct. 7 attacks in Israel killed some 1,200 people. Since that time, Hamas has launched hundreds of rockets into Israel, indiscriminately targeting population centres. Israel has retaliated with an unprecedented use of force in the Gaza Strip, killing more than 18,000 people.
Violating international law
Hamas’s deliberate targeting of civilians and taking of hostages are in direct violation of international humanitarian law.
The International Criminal Court has an open investigation into alleged war crimes committed in Palestine by both Hamas and Israel, which it began in 2015. ICC prosecutor Karim Khan recently visited Israel and called on both sides to respect their obligations to adhere to international humanitarian law.
There are growing international calls for a ceasefire. More than 150 members of the United Nations General Assembly, including Canada, have voted in favour of a resolution calling for a ceasefire. Ten members voted against the resolution, including Israel and the United States.
The U.S. also recently vetoed a UN Security Council resolution for a ceasefire.
As developments unfold, it’s important to keep in mind that whether an armed conflict is classified as international or non-international has a significant impact on the protections afforded combatants and civilians.
In the absence of a ceasefire, that category of classification will also affect the level of accountability to which perpetrators of war crimes will be held.