Factors in war to peace transitions.

• Author: von Heinegg, Wolff Heintschel

Situations of international armed conflict regularly give rise to some misunderstandings with regard to the applicable law and its interpretation. This especially holds true if these misunderstandings are reinforced by statements of a purely political character. All too often some commentators, obviously considering such statements to be of higher relevance than the law, prefer to rely upon these statements rather than on a proper analysis of the relevant treaties. The situation in Iraq gives ample proof of legal evaluations that are, to say the least, based on an erroneous interpretation. (1)

It is the aim of the present paper to clarify what law applies as the transition from war to peace occurs. To do this, it must first be determined which situations qualify as wars or as international armed conflicts, (2) as distinguished from peace. Closely related to this determination are the different forms of terminating and of suspending an international armed conflict. Clarifications of such forms are prerequisites for the identification of the point in time at which the law of armed conflict ceases to apply. After these necessary preliminaries, it will be possible to deal with the rights and duties of an occupying power and with the legal validity of the measures taken by that power. Thus, the ground will be paved for a final determination of what law applies during the different phases marking the transition from war to peace.

1. WAR AND PEACE DISTINGUISHED

   While a state of war may still be brought into existence by a declaration of war, (3) sometimes combined with an ultimatum, (4) there is currently a general agreement that the law of armed conflict applies to every situation of international armed conflict, even if a state of war does not exist or is not recognized. (5) An international armed conflict is defined as a situation, usually characterized by the use of the armed forces of one State against another State, that necessitates the application of the body of law aimed at the protection of victims of armed conflicts (6)--wounded, shipwrecked, sick, and captured members of the armed forces, the respective civilian population, and individual civilians--and regulating the methods and means of warfare. (7) The actual conduct of armed hostilities is, however, not a conditio sine qua non. According to common Article 2 of the 1949 Geneva Conventions, the Geneva Conventions "shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." (8)

   1. Occupation and "Cessation of Active Hostilities" or "General Close of Military Operations"

      The ratio legis of the provision applying the law of armed conflict to an occupation, even if it meets no armed resistance, is obvious. According to Article 42, para. 1, of the 1907 Hague Regulations, "territory is considered occupied when it is actually placed under the authority of the hostile army." (9) The civilian population, one of the groups of protected victims, comes under the authority of the enemy's armed forces and thus is in need of continuing protection by the laws of armed conflict. Moreover, the presence of foreign forces on a State's territory, which in case of occupation will presumably be against that State's will, is to be considered a continuous use of military force by one State against another State.

      This, by necessity, implies that any situation of occupation constitutes an international armed conflict, regardless of whether it meets armed resistance or not. As long as the "hostile army" is present and is exercising "authority" in the territory in question, the armed conflict has not come to an end. However, the mere fact that the occupying forces cease to effectively exercise such authority--whether they are forced to retreat or they are needed elsewhere--does not mark the end of the international armed conflict. (10) Hence, the beginning of an occupation may, but does not necessarily, fall together with the beginning of an international armed conflict. The same holds true for the end of an occupation that may, but does not necessarily, tall together with the termination of war. The end of an occupation is a question of fact. It will be brought about by any loss of authority over the territory in question. Only if accompanied by the "cessation of active hostilities," (11) or by the "general close of military operations," (12) or by any other form of terminating the war, will the end of the occupation also signify the end of an international armed conflict.

      At first glance, this finding seems to be contrary to Article 3 of the 1977 Additional Protocol I, according to which "the application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in case of occupied territories, on the termination of' the occupation." (13) Seemingly, with the termination of an occupation, the law of armed conflict ceases to apply because there will no longer be an armed conflict. However, this provision has to be read in close conjunction with common Article 2 of the 1949 Geneva Conventions. According to the latter provision, an occupation is but one form of an international armed conflict that triggers the applicability of the law of armed conflict. If, besides the total or partial occupation, there exists no situation of "any other armed conflict," then the termination of the occupation may also mean the termination of the armed conflict. (14) If, however, the armed hostilities continue--in other words, if there is a need for the continuing application of the law of armed conflict because the situation may or does produce victims--then the termination of the occupation will certainly not lead to an end of the war. (15)

      Accordingly, the mere fact of a silence of arms does not terminate war. (16) The exercise of authority by the armed forces on the enemy's territory is to be characterized as an international armed conflict. The termination of such exercise alone should not be equated with the "cessation of active hostilities," the "general close of military operations," or any other form of terminating an international armed conflict. Of course, occupation may constitute a first step towards peace if major fighting has come to a lasting end. This, however, can only be established ex post facto and will depend upon the circumstances of the concrete situation in question.

   2. From War to "Negative" and "'Positive" Peace

      Before dealing with the different forms of terminating (and of suspending) an international armed conflict, it needs to be stressed that the end of a war merely means a return to peace insofar as the situation thus created is characterized by the absence of military operations, including occupation. This situation, often referred to as "negative peace," of course does not mean a return to normal or amicable relations between the former belligerents, often referred to as "positive peace." (17) The latter condition, while not apt for an abstract and comprehensive definition, (18) may be achieved through the exchange of diplomats and by the reestablishment of economic and cultural relations. There is, however, another aspect of this issue that is of importance in that context. A situation of "positive peace," which is, inter alia, based upon the principle of sovereign equality of States, regularly presupposes the reestablishment of the full sovereignty of all belligerents. While the termination of an international armed conflict implies that any further use of armed force not justified by the right of self-defense will be contrary to the fundamental prohibition of the use of force, (19) the existence of negative peace does not necessarily imply the return of the vanquished state to full sovereignty. While there may be an exchange of diplomats as well as other forms of establishing diplomatic relations, the situation may not be characterized as a return to, or the establishment of, positive peace so long as the State concerned has not regained its full sovereignty.

      This was the case with Germany until its reunification because all questions relating to "Germany as a whole" had been made subject to the so called "Allied reservations," which meant that neither the Federal Republic of Germany nor the German Democratic Republic were allowed to autonomously decide on that core question of their respective sovereignty. (20) Moreover, Berlin remained under an occupational regime. (21) Only with the end of the Allied rights concerning Germany as a whole, including Berlin, did Germany and the Allies return to a situation of positive peace proper. (22)

2. TERMINATION AND SUSPENSION OF WAR

   In the aftermath of World War II there was a rather extensive discussion about the appropriate way to terminate a state of war. While some believed a peace treaty to be essential, others considered the end of the military hostilities or the unconditional surrender by the German armed forces to have signified the end of the war. (23) That discussion was revived after the Korean conflict in 1953, after the end of Operation Desert Storm in 1991, and after the end of major military operations in Iraq in 2003. One of the main issues in those discussions was, and has been, the legal effects of an armistice and of a ceasefire, because the rules laid down in the 1907 Hague Regulations were no longer reflected by State practice. Moreover, the debate revealed that the exact meaning of the provisions of the Geneva Conventions and of Additional Protocol I, referring to the "cessation of active hostilities" or to the "general close of military operations," was far from settled. The same holds true for the ancient concept of debellatio.

   1. Termination of War

      As already stated above, a situation of "negative" peace presupposes the termination of war or international armed conflict and must be distinguished...