War and Peace: Where Is the Divide?

• Author: Charles Garraway
• Position: Associate Fellow at Chatham House on the International Security Programme and a Fellow of the Human Rights Centre, University of Essex
• Pages: 93-115

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War and Peace: Where Is the Divide?

Charles Garraway5

Regarding the rules of warfare, whether we think of Hugo Grotius (De Jure

Belli ac Pacis), 1Oppenheim (International Law: ATreatise) 1or Tolstoy

(War and Peace)? we look back at an earlier age. Ahundred years ago, there was

war and there was peace. Each was clearly identifiable and subject to its own rules.

To codify one area, in 1907, the Hague Peace Conference agreed upon aConven-

tion on the Opening of Hostilities (Hague Convention III). 4For centuries, there

had been customary rules dealing with armistices, capitulation, surrender and the

restoration of peace. The laws of war were applicable in the period between the

opening of hostilities and the restoration of peace.

The middle of the twentieth century began to place this system under strain.

States had sought to avoid the application ofthe laws ofwar by denying that hostili-

ties amounted to a"war" within the legal definition. The Geneva Conventions of

19495 attempted to resolve this problem by changing the application threshold

from "war," with its legal technicalities, to "armed conflict," afactual assessment.

The spotlight turned from the initial threshold to anew problem. Whereas "war"

had always been looked upon as the use of force between States, the nature of

armed conflict was different. No longer did States hold amonopoly of violence.

The end of colonialism and the Cold War led to war by proxy, often fought be-

tween armed groups within aState fighting for control of that State. Sometimes,

*Associate Fellow at Chatham House on the International Security Programme and aFellow of

the Human Rights Centre, University of Essex.

War and Peace: Where Is the Divide?

one group represented the recognized government fighting an insurgency; in other

cases, the fight was between groups and each might have recognition from States

on different sides of the ideological divide. The laws of war, or as they were now

known, the laws of armed conflict, were still primarily amatter of treaty law, appli-

cable only to wars between States, now called international armed conflicts. Only

limited provisions applied to these new internal armed conflicts, now referred to as

non-international armed conflicts. The key issues became, on the one hand, defining

the distinction between international and non-international armed conflict and, on

the other hand, working on extending the rules applicable to non-international

armed conflict.

However, in recent years, the initial threshold of armed conflict has again be-

come relevant. This has been caused to some extent by the success of those who

have sought, for humanitarian reasons, to merge the rules relating to international

and non-international armed conflict, but also by politicians, who have sought to

take advantage of the greater freedom of action normally granted to States in time

of war by seeking to apply the laws of war in areas beyond their traditional field.

The tensions have led to adebate that has suffered from aseeming inability by dif-

ferent sides to understand where others are coming from. It has become multifac-

eted and in some cases issues have been lost in confusion over vocabulary. This

article will seek to look at how the problems have arisen and whether there is still

room for acomprehensive approach that will accommodate to some extent all the

competing factions.

In order to find asolution, it is first necessary to identify the problem and how it

has arisen. As it has arisen from two separate confrontations, this is more compli-

cated than usual; however, the attempt must be made. First, let us look at the legal

arguments that have led to the increasing merger of the law relating to interna-

tional and non-international armed conflict.

As we have seen, this first arose as an issue after the Second World War. Until

that time, the use ofviolence was seen as the monopoly of States. Similarly, interna-

tional law involved States and not, for the most part, private individuals. The laws

of war therefore dealt with wars between States and what went on within the

boundaries of aState was for that State alone and not amatter for the international

community. This is to some extent reflected even in the United Nations Charter,

where Article 2(7) states:

Nothing contained in the present Charter shall authorize the United Nations to inter-

vene in matters which are essentially within the domestic jurisdiction of any State or

shall require the Members to submit such matters to settlement under the present

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