Royal Army College

Lesson Overview

The first lesson set out why the law of armed conflict exists. This lesson sets out its shape: where the law came from, what its main parts are, when it applies and when it does not, and how it sits alongside the orders a soldier actually receives. This is not the lawyer's detail. It is the map a soldier needs to know which rules bind them, in which situation, and where their Rules of Engagement fit. A soldier with this map will not confuse a peacetime task with a battlefield, nor mistake a tighter order for a loophole in the law.

This lesson is the framework on which every later lesson hangs: the principles in Lesson 03, the protected people in Lesson 04, the prisoners of Lesson 06, the soldier's own responsibility in Lesson 07, and the home and humanitarian tasks of Lesson 08. Hold the shape of the law clearly now and the detail that follows will have somewhere to sit. The lesson is short on rules and long on orientation, and orientation, knowing where you stand in a body of law before you act on it, is what keeps a soldier steady when a situation moves faster than thought.

By the end you will be able to describe the two historic streams of the law and the principal instruments that carry it today, explain when the law of armed conflict applies and when it does not, distinguish an international from a non-international armed conflict in plain terms, and explain how the law, your Rules of Engagement, and human rights law fit together.

Key Terms

Law of Armed Conflict (LOAC): the body of international law that governs how armed conflict is conducted, protecting those outside the fighting and limiting the means and methods of warfare. Also called International Humanitarian Law (IHL).
International Humanitarian Law (IHL): the same body of law, under the name used by the International Committee of the Red Cross and in international writing. Treat either name as one.
Geneva law: the stream of the law that protects the victims of war: the wounded, sick, and shipwrecked, prisoners of war, and civilians.
Hague law: the stream of the law that limits the means and methods of warfare: the weapons and tactics a force may use. The two streams are now treated as one body of law.
Treaty law: rules written down in formal agreements that states sign and ratify, binding themselves and their armed forces to keep them.
Customary law: rules that bind all forces because they are the settled, accepted practice of nations, whether or not a particular state has signed a treaty on the point.
International armed conflict (IAC): an armed conflict between two or more states.
Non-international armed conflict (NIAC): an armed conflict between a state and one or more organised armed groups, or between such groups.
Rules of Engagement (ROE): the orders, issued for a particular operation, that tell a soldier when and how force may be used. ROE may be tighter than the law, never looser.
Rules for the Use of Force (RUF): the Army's standing rules governing when and how a member may use force in the ordinary course of duty, including in aid to the civil authority at home. They are the soldier's default when no mission-specific Rules of Engagement are in force, and they are stricter than the law of armed conflict.
Human rights law: the body of law that protects every person at all times, in peace and in war alike, and that governs the policing and home-soil tasks a humanitarian force most often performs.

Two streams, now one river

The law of armed conflict grew from two separate sources that have since joined into a single body. Know them by name, because the names still appear and because they describe two different kinds of rule a soldier must keep.

The first stream is named after Geneva. It protects the victims of war: the wounded and sick on land, the shipwrecked at sea, prisoners who have fallen into enemy hands, and civilians caught up in the fighting. This is the stream that began at Solferino, that founded the Red Cross, and that asks a soldier to spare and care for those who are not, or are no longer, a threat. The four Geneva Conventions, which you meet again and again in this course, are its modern form.

The name belongs to a city for a reason. In 1859 a Swiss businessman, Henry Dunant, came by chance upon the field after the battle of Solferino, where tens of thousands of men lay wounded and dying with almost no one to tend them. What he saw led to the founding of the Red Cross and, a few years later, to the first Geneva Convention: an agreement among states that the wounded of war, and those who care for them, should be spared and helped whatever side they were on. Everything in the Geneva stream since has widened that one idea, that there are people in war who must be protected by all sides because they are no longer part of the fight. It is the oldest and most human part of the soldier's trade.

The second stream is named after The Hague, where its founding conferences were held. It limits the means and methods of warfare: which weapons a force may use, and which tactics are forbidden, even against a lawful enemy. This is the stream that bans weapons which maim without military purpose and methods which cannot tell a soldier from a child.

The Hague stream answers a different question. Geneva law asks, "Who must I protect?" Hague law asks, "What am I allowed to do to the enemy I may lawfully fight?" The answer is the principle to carry into the next lesson: the right to choose means and methods of warfare is not unlimited. Even against an enemy you may lawfully attack, you may not use a weapon that causes suffering out of all proportion to any military purpose, and you may not use a method that strikes soldier and civilian alike with no way of telling them apart. A poisoned weapon, a weapon that fills the body with fragments no surgeon can find, a method of attack aimed at nothing in particular: these are forbidden not out of sympathy for the enemy but because they serve cruelty rather than victory. The weapons lesson of a fuller course takes up the particular bans; what you need here is the parent idea that the means are limited, always, by law.

For many years these were treated as two separate bodies of rules. Today they are woven together and regarded as a single law, and you need not sort every rule into one box or the other. The distinction matters mainly as a way of remembering that the law does two things at once: it protects people, and it limits means. Hold those two ideas and you hold the whole structure. The law of armed conflict has two hands: one open, to shelter; one raised, to restrain.

The instruments that carry the law

The law is written down in treaties, agreements that nations sign and bind themselves to keep. You do not need to study the texts, but you should recognise the principal ones.

At the centre stand the four Geneva Conventions of 1949, agreed after the suffering of the Second World War. The first protects the wounded and sick of armed forces on land; the second, the wounded, sick, and shipwrecked at sea; the third, prisoners of war; and the fourth, civilians in time of war. Two later agreements, the Additional Protocols of 1977, extended and updated them, the first for international conflicts and the second for conflicts within a state. Alongside them sit a number of treaties on particular weapons, which the weapons lesson takes up.

Fix the four Conventions in order, because the order is the whole logic of Geneva law laid out plainly. They move outward from the soldier to the civilian, by the degree to which a person has left the fight:

   THE FOUR GENEVA CONVENTIONS OF 1949

   GC I    The wounded and sick of armed forces in the field (on land)
   GC II   The wounded, sick, and shipwrecked of armed forces at sea
   GC III  Prisoners of war
   GC IV   Civilians in time of war

   Each protects a category of person who is not, or is no longer,
   taking part in the fighting. Together they cover the victims of war.

   ADDITIONAL PROTOCOLS OF 1977
   AP I    Develops the law for international armed conflict
   AP II   Develops the law for non-international armed conflict

The line each Convention draws is the same line that runs through the whole law: between those who may still be fought and those who may not, because they are out of the fight or were never in it. Remember the four in order and you are not memorising a list. You are rehearsing the central idea of the protective law, four times over.

One point about these treaties is important enough to set down plainly. A great deal of the law binds a force as customary law, whether or not its state has signed the relevant treaty. Customary law is the settled, accepted practice of nations, recognised as binding by almost all of them. The ban on weapons that cause needless suffering, the duty to spare civilians, the duty to treat the captured humanely: these bind every force in every armed conflict, by custom, even where no treaty applies. No soldier and no state can escape the core of this law by pointing out that they never signed a particular paper. The law is the common standard of humanity in war, and almost every nation on earth has accepted it, by treaty, by custom, or by both.

The distinction between treaty and custom deserves attention, because misunderstanding it is dangerous. A treaty is a written agreement: a state signs it, ratifies it, and is bound by its text; if it has not signed, that text does not bind it directly. Custom is different in kind. It does not rest on a signature. It rests on the long, consistent practice of nations, done out of a sense of legal duty, until it hardens into a rule binding on all of them. The ban on poison, the duty to spare the civilian, the duty to give quarter to the man who surrenders, the prohibition of torture: these are not waiting for a state's signature. They bind because the conscience and practice of nations have made them bind, with or without a treaty, and the International Committee of the Red Cross, the recognised guardian of this law, has set them out at length. Why does this matter to the soldier with the rifle? Because no one will ever lawfully tell you, "We never signed that treaty, so the rule does not apply." The core of the law, the part you will actually be asked to keep, binds by custom, and custom binds everyone. There is no opt-out from the duty to spare the helpless. And where even custom seems to run out, a long-standing principle holds that people remain under the protection of the principles of humanity and the dictates of the public conscience: no gap in the text is a licence for cruelty.

When the law applies

The law of armed conflict has one precondition: there must be an armed conflict. Its rules are made for war, and outside war they do not switch on. This is one of the most important things in the whole course for a soldier in the RKA to grasp, because most of what the Army does is not war.

Be exact about why this precondition matters so much to this particular Army. The law of armed conflict permits things that, in any other setting, would be grave crimes: in an armed conflict a soldier may, within the rules, attack an enemy combatant because of who that person is, before that person has done anything at all in the soldier's presence. That permission, to use deadly force against a class of person by status, exists nowhere outside armed conflict. The RKA is far likelier to be found on a relief task, a peace-support deployment, or in aid to the civil authority than in a high-intensity war. On those tasks that permission does not exist. There are no combatants to target by status; there are only people, every one protected, and force may be used against a person only when, and only as far as, a real threat requires. To carry the permissions of armed conflict into a setting that is not armed conflict is not a small error of category. It is the difference between a lawful act and a homicide. This is why a soldier must be able to tell, before anything happens, which body of rules is live.

The law recognises two kinds of armed conflict. An international armed conflict is fighting between two or more states; their armed forces meet, and the full body of the law applies. A non-international armed conflict is fighting within a state, between the state's forces and one or more organised armed groups, or between such groups. For a group's fighting to count, the group must be organised, under some responsible command, and the violence must reach a real level of intensity, beyond the passing and the sporadic. A smaller core of the law, but a real and binding one, applies in these conflicts.

The two tests for a non-international armed conflict are what separate a real internal conflict from serious but ordinary disorder. The first is organisation: is the armed group a real organisation, with a command structure, the ability to plan operations, and some discipline, or is it a loose, leaderless crowd? The second is intensity: has the fighting reached a sustained, serious level, drawing in the armed forces and lasting beyond a flare-up, or is it a riot the police could in principle handle? Both must be met together. A well-organised group that has only threatened is not yet in an armed conflict; a sudden, intense riot with no organisation behind it is not one either. A junior soldier does not draw this line alone, and Lesson 07 returns to the duty to seek clarity rather than decide such questions privately. But knowing the line exists, and roughly where it runs, is part of the soldier's map.

Just as important is what is not an armed conflict, and so is not governed by this law at all. Riots, demonstrations that turn violent, isolated acts of violence, ordinary crime, even serious public disorder, fall short of armed conflict. They are governed by the country's own domestic law and by human rights law, not by the law of armed conflict. The same is true of policing tasks and of aid to the civil authority at home. A soldier helping the police control a crowd, or assisting in a flood, is not in an armed conflict and is not governed by the rules of targeting and attack. They are bound by domestic law and by the Rules for the Use of Force, which are far more restrictive about when force, and especially lethal force, may be used at all. Mistaking one situation for the other is a serious error in both directions: it is wrong to apply battlefield rules to a crowd, and wrong to imagine a real conflict is mere disorder.

There is one more category to know exists, even though this Army is unlikely to meet it: a body of rules that applies in occupation, when a force holds territory that is not its own. The fourth Geneva Convention deals with it, and it is mainly the concern of larger armies on large operations. It is mentioned here only so the map is complete, and so no soldier imagines the law stops at the moment the fighting does. The duty to protect the civilian, in particular, outlasts the battle.

How the law, your ROE, and human rights law fit together

A soldier in the field is not handed the treaties; they are handed orders. The most important of these are the Rules of Engagement, the directions issued for a particular operation that say when and how force may be used. Soldiers sometimes confuse the law with their ROE, and the relationship between the two must be exactly understood.

Think of it as three layers. The law of armed conflict sets the outer legal limit, the line a soldier may never cross whatever their orders. No commander can order you past it, and no order takes you over it lawfully. Inside that limit sit your Rules of Engagement. ROE are policy and command decisions for the operation in hand, and they are very often tighter than the law allows, holding fire in situations where the law would permit it, for reasons of strategy, of protecting civilians, or of the mission's wider aim. Fix this rule in the mind: ROE may be tighter than the law, but never looser. Your orders can forbid you more than the law forbids; they can never permit you what the law prohibits. An order that purported to do so would be unlawful, and the responsibility lesson deals with what a soldier must do then.

Take a concrete case. Suppose the law of armed conflict would, in a given moment, permit a soldier to engage an identified enemy fighter moving across open ground; the man is a lawful target. But the soldier's ROE for that operation say: do not open fire unless fired upon, because the operation's purpose is to keep the peace. The soldier holds fire. Has the soldier broken the law by not engaging? No. The law sets the outer limit of what may be done; it does not require that the limit be reached, and the ROE, tighter than the law, are the soldier's actual instruction, lawful precisely because they restrict rather than expand what the law allows. Now reverse it. Suppose an order, however dressed up, told the soldier to fire on a person who had thrown down his weapon and raised his hands. The law forbids that absolutely, and no order can make it lawful, because ROE cannot reach past the outer limit the law has set. The first case is the normal one, and the soldier obeys; the second is the rare and grave one, an order beyond the law, which the soldier must not obey, a matter Lesson 07 takes up. The single sentence holds it all: ROE may be tighter than the law, never looser.

The third layer is for peace and home soil. Where there is no armed conflict, in peacetime, on a policing or disaster task, in aid to the civil authority, it is not the law of armed conflict that governs at all, but human rights law and the Rules for the Use of Force. These permit force only in far narrower circumstances, chiefly to protect life, as a last resort, and only to the degree needed. The law of armed conflict and its rules of targeting belong to armed conflict; on home soil and in peace, a soldier follows the Rules for the Use of Force, which are stricter still. The final lesson of this course returns to these home and humanitarian operations, which the RKA is most likely to undertake.

Be clear about what human rights law is, because for this Army it is not a footnote but the everyday frame. It protects every person, at all times, in peace and in war alike: a person may not be arbitrarily deprived of life, may not be tortured, may not be detained without lawful basis and review. In armed conflict it runs alongside the law of armed conflict; in peace, and on the home and humanitarian tasks the RKA most often performs, it is the governing frame, with the law of the Principality and the Army's own Rules for the Use of Force. The practical difference is sharp. Under human rights law there is no such thing as a person you may use force against simply because of who they are. There are only people, every one protected, and force, especially lethal force, is permitted only where strictly necessary to meet a threat to life, and only to the degree that threat requires. This is the law the Aid to the Civil Power course develops in full, and the Public Order training applies to crowds; this lesson only sets the marker that, off the battlefield, this is the law that governs, and it is stricter than the law of war, not looser.

Here is the whole framework in one figure. Commit it to memory, because it answers, in a single picture, the question every other lesson assumes you can answer: which rules bind me, here, now?

   THE FRAMEWORK OF THE LAW

   LAW OF ARMED CONFLICT (LOAC) = INTERNATIONAL HUMANITARIAN LAW (IHL)
   |
   |   built from two streams, now one body of law:
   |
   +-- GENEVA LAW ............ protects the victims of war
   |       (wounded, sick, shipwrecked, prisoners, civilians)
   |
   +-- HAGUE LAW ............. limits the means and methods of warfare
           (which weapons and tactics may be used)

   carried in two forms, both binding:

   +-- TREATY LAW ............ written agreements states sign and ratify
   |       (the four Geneva Conventions 1949, the two Protocols 1977)
   |
   +-- CUSTOMARY LAW ......... the settled practice of nations; binds
           everyone, treaty signed or not (the core duties of humanity)

   ---------------------------------------------------------------

   WHEN IT APPLIES:  only in ARMED CONFLICT
                     (international, between states; or
                      non-international, a state vs organised armed
                      groups, or such groups against each other)

   HOW A SOLDIER MEETS IT IN THE FIELD:

   +-- LOAC ............ the OUTER legal limit. Never crossed,
   |                     whatever the orders.
   |
   +-- inside it: RULES OF ENGAGEMENT (ROE)
   |                     orders for one operation; often TIGHTER
   |                     than the law, NEVER looser.
   |
   +-- in PEACE / HOME SOIL / no armed conflict:
                         HUMAN RIGHTS LAW + the RULES FOR THE USE
                         OF FORCE govern instead. Stricter still:
                         force only to meet a real threat, as a last
                         resort, to the minimum degree.

   MOST RKA TASKS sit in the bottom box, NOT in armed conflict.

Read the figure from the top and it tells the story of the lesson: one body of law, two streams (protect people, limit means), carried in two forms (treaty and custom), switched on only by armed conflict, and met in the field as three layers (the law's outer limit, the ROE inside it, and, off the battlefield, human rights law and the Rules for the Use of Force). If you can redraw this from memory, you have the framework.

The few rules every soldier must know by heart

Beneath the streams, the instruments, and the categories lies a small set of rules so fundamental that they bind in every armed conflict, by custom, regardless of any treaty, and that a soldier must simply know, the way a soldier knows the safety rules of a weapon. The fuller content of each belongs to the lessons ahead, but they are gathered here because the whole framework exists to carry them. If a soldier forgot everything else in this lesson but held these, the framework would still have done its work.

   THE RULES THAT BIND, ALWAYS, BY CUSTOM

   1. Spare those who are not fighting. Direct force only at those
      taking part in the hostilities; protect civilians and civilian
      objects.

   2. Spare those who have stopped fighting. The wounded, the sick,
      the shipwrecked, those who surrender, and the captured are out
      of the fight and must not be attacked.

   3. Treat everyone in your hands humanely. No torture, no cruelty,
      no humiliation, no hostages, ever. This protection has no
      exceptions and no off-switch.

   4. Collect and care for the wounded and sick, friend or enemy,
      by need and not by side.

   5. Do not use weapons or methods that cause needless suffering,
      or that cannot tell a fighter from a civilian.

   6. Respect those who wear the red cross, red crescent, or red
      crystal, and the medical and relief work they protect.

   7. Use only the force the task lawfully requires, and account for
      it honestly afterwards.

None of these depends on a treaty a soldier has read, a rank a soldier holds, or an order a soldier has received. They bind by custom, which is to say they bind everyone, in every armed conflict, and their spirit binds every operation the Army undertakes, including the home and humanitarian tasks where the Rules for the Use of Force apply. A soldier who keeps these seven keeps the heart of the law even on the day the detail has slipped away. The remaining lessons are, in a sense, these seven rules unfolded: Lesson 03 turns them into the four principles, Lesson 04 names the people they protect, Lesson 06 applies them to prisoners, and Lesson 08 carries them onto home soil. Learn them now, plainly, and the rest of the course will feel like recognition rather than instruction.

In Practice: Three Tasks, Three Sets of Rules

Follow one soldier across three deployments, and use the figure above rather than admire it. On a peace-support operation abroad the first question is: is there an armed conflict here? Yes, fighting between organised forces, sustained and intense, so the law of armed conflict is live in full, the seven binding rules in force without exception. But the soldier does not act on the law's outer limit; the soldier acts on the ROE, which are tighter, hold fire unless fired upon, and so holds fire even where the law would permit engaging, because tighter orders are still lawful orders. The framework gave two things at once: the floor of protection that can never be crossed, and the operation's tighter line inside it.

Months later, at home, the same soldier is sent to help the police manage a large and angry crowd, and the first question gives a different answer: armed conflict here? No. A large, frightening crowd is not an organised armed group in sustained combat; it is public disorder, governed by the law of the Principality and human rights law, and the police hold primacy. The whole top half of the framework does not switch on. What governs is the Rules for the Use of Force: force only to meet a real threat, only as a last resort, only to the degree the threat requires, never to punish. A soldier who carried the permissions of the first task into this one, who thought of the crowd as an enemy to be engaged, would have committed not a tactical error but a crime.

The following winter the soldier is deployed on flood relief, and the first question gives the same "no": no enemy at all, only people in need, and again the Rules for the Use of Force govern, with the humanitarian standards a force assisting civilians must keep. One soldier, three tasks, and in each the right conduct came from running the same framework and acting on the answer it gave. Knowing which set is live, before anything happens, is the whole point of this lesson.

Check Your Understanding

Describe the two historic streams of the law of armed conflict, and say in one sentence what each is for.
What must be present for the law of armed conflict to apply at all? Give an example of a violent situation in which it does not apply, and say what governs instead.
Explain the relationship between the law of armed conflict and your Rules of Engagement. Can ROE permit what the law forbids? Can they forbid what the law permits?

Reflection (write a short paragraph): Much of what the Royal Kaharagian Army does is not armed conflict but humanitarian work and aid to the civil authority at home. Why does it matter that a soldier can tell, before a situation develops, which body of rules governs the task they are on? Think of a way a soldier might go wrong by applying the wrong set of rules, in either direction, and what understanding would prevent it.

Summary

The law grew from two streams now joined into one: Geneva law, which protects the victims of war (the wounded, sick, shipwrecked, prisoners, and civilians), and Hague law, which limits the means and methods of warfare. Together they protect people and limit means.
The principal instruments are the four Geneva Conventions of 1949 (the wounded on land, the wounded and shipwrecked at sea, prisoners of war, and civilians) and their two Additional Protocols of 1977. Much of the law also binds every force as customary law, the settled practice of nations, whether or not its state has signed a treaty. There is no opt-out from the core duties of humanity.
The law of armed conflict applies only in armed conflict: international (between states) or non-international (a state against organised armed groups, or such groups against each other, where the group is organised and the fighting is intense). It does not apply to riots, ordinary crime, or public disorder, which are governed by domestic and human rights law.
The law sets the outer limit a soldier may never cross; Rules of Engagement sit inside it and are often tighter, never looser; in peace and on home soil it is human rights law and the Rules for the Use of Force that govern, and they are stricter than the law of war, not looser.
A small set of rules binds in every armed conflict by custom and must be known by heart: spare those not fighting and those who have stopped, treat everyone in your hands humanely, care for the wounded by need, shun weapons and methods that cause needless suffering or cannot discriminate, respect the protective emblem, and use only the force the task requires and account for it.
Knowing which rules are live, before anything happens, is the practical point of the framework: most RKA tasks are not war, and the wrong rule set applied in either direction is a serious error.

The Framework of the Law