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PETRA DITRICHOVÁǧOCHMANNOVÁ
CYIL 7 ȍ2016Ȏ
states are often claiming that they are conducting law enforcement operations where
instead they should apply the law of armed conflict paradigm.
It is interesting in this respect is to observe very inconsistent state practice. For
instance, when a U.S. pilot was shot down by Syrian forces over Lebanon in 1988,
the U.S. originally claimed that the pilot was entitled to POW status under GC III;
however, afterwards President Reagan stated that there is no declared war between
the nations, and therefore a pilot is not eligible for the Geneva Convention’s status.
26
Unfortunately, the issue of clarity over the use of appropriate rules is not simple
either in a situation of armed conflict. The fact is that it became almost a rule rather
an exception that in a situation of armed conflict armed forces are also undertaking
law enforcement tasks (e.g. check-points) in addition to conduct of hostilities.
Therefore, complexities of modern military operations also actively contribute to
blurring the understanding of what legal regime should be followed.
3.1 Differences in Use of Force in peacetime and situations
of armed conflict
The law governing the use of force in peacetime is called “law enforcement”,
and the law governing the use of force in wartime is called “law of armed conflict”
(LOAC). Both legal regimes are based on different assumptions and conditions
upon which a force may be legally used (by and against whom) and naturally
leads to different consequences.
27
Despite the assumption that some basic human
rights must apply in both situations (e.g. right to life etc.),
28
as well as general
trends towards complementary application of human rights in situations of armed
conflicts, it is important to understand the different approach of the legal paradigms
towards specific issues, such as use of force.
First of all, the LOAC is based on the assumption that the use of force is
inherent to waging war, because the ultimate aim of military operations is to prevail
over the enemy’s armed forces.
29
Military necessity for the use of force is therefore
automatically presumed. The assumption is different for law enforcement, which is
mainly governed by human rights law. Human rights law was initially conceived to
protect individuals from abuse by their State; therefore use of force is considered as
26
International Law Association, The Hague Conference (2010), Final Report on the Meaning of Armed
Conflict in International Law, p. 17-18; Similarly, when in 2007 British sailors were detained by Iran,
the UK claimed that they are entitled to POW treatment. PAUL BERMAN, “When does violence
cross the armed conflict threshold: current dilemmas” in
Proceedings of the Bruges Colloquium, Scope of
Application of International Humanitarian Law
, 13th Bruges Colloquium, No. 43, 2013, p. 39.
27
For more information, see for instance FRANCOISE J. HAMPSON, “The Relationship between
International Humanitarian Law and Human Rights Law from the perspective of a Human Rights
Treaty Body”,
International Review of the Red Cross
, Vol. 90, No. 871, September 2008, p. 549-572.
28
For instance, see ICJ, Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996.
29
JEAN PICTET,
Development and Principles of International Humanitarian Law
, Martinus Nijhoff
Publishers, 1985, p. 62.