Use of Force and International Humanitarian Law

The First World War radically changed approaches to the use of force for war purposes in international law. The great destruction brought about by the First World War showed the danger posed for the whole world by the rules that depend only on the balance of power relations and are open to change at any moment. After this world war, the international
community deeply felt the need to create restrictive legal mechanisms that would completely prevent interstate aggression in general. The establishment of the League of Nations is a milestone in this regard. Although the League of Nations Pact did not make the use of force between states completely illegal, it made it subject to certain conditions, and procedural processes were envisaged to prioritize peaceful resolution in case of a dispute.

The prohibition on the use of force is applicable
at the international level and does not cover the use
of force by a state in its own country (suppressing
internal rebellion and similar). Although the
prohibition of the use of force has become a
customary rule and is accepted by the international
community, it is handled in quite different ways
together with the right of self-defense, which is an
exception to the prohibition of the use of force,
and there are many different opinions on this issue.

The traditional definition of self-defense in international law was made in the Caroline case of 1837. After the UK destroyed the ship Caroline in a US port on the grounds that it was carrying aid to groups carrying out rebellion movements against the UK in Canada, the US issued a statement and said:
“There must be a sudden, irresistible action that must be reciprocated in self-defense, leaving no other choice or thought.” It is accepted that the criteria specified after the Caroline incident have become customary international law over time.

There are only two clear exceptions to the prohibition on the use of force in the UN Charter:
• Measures taken by the UN SecurityCouncil
• Self-defense.

According to this doctrine, if an armed nonstate actor is engaged in large-scale armed activities against a state through the territory of another state, and the state is incapable or unwilling to prevent these activities, it is possible for the victim state to exercise its right of self-defense against the non-state actor in question. It will be expected that the aggrieved state will primarily try to obtain the consent of the other state and act in cooperation with this state. The attacked state should report the attacks, dangers, and threats to which it is exposed to the state on which non-state actors are stationed, and give itself a reasonable time to suppress and prevent the actions of these actors. In addition, conditions such as necessity, proportionality, and notification to the UN Security Council will, of course, be taken into account in such cases.

Discussions about whether cyber attacks can be counted as the use of force are also very important today because it is not possible to say that there is a consensus on what kinds of actions the concept of “force” will cover. It has been a matter of debate for many years, especially whether economic sanctions can be accepted as an act of using force. Cyber attacks, another type of action that can be considered the use of force, have started to be discussed in this context in parallel with the increase in damage caused by such attacks with the development of technology. Considering the dynamic nature of the use of force, it can be accepted that cyber attacks, which do not involve physical force due to their nature, but can cause tangible damage at the same level as an armed attack, can be equivalent to using force. There is no clear international regulation on this subject yet. However, in the Tallinn Manual7, prepared by a group of distinguished international law experts in cooperation with certain states, it is stated that cyber attacks, whose scale and effects are equivalent to the use of conventional force, will constitute the use of force.

Throughout human history, violence has been used from time to time to resolve conflicts. Today, many people still live in conflict zones in different parts of the world. International humanitarian law has also emerged in response to the need to limit the effects of armed conflict. It can be said that the origin of modern international humanitarian law is based on the Geneva Convention of 1864. Because, in the period before this convention, armed conflicts were generally regulated in accordance with unwritten rules. The developments in weapon technologies and the change in the structure of armed conflict have led to an increase in the need for rules regarding combat over time; the development of international humanitarian law, which was envisaged as a solution to these needs, also took place in stages. Modern international humanitarian law has basically developed in two different areas. The first of these relates to victims of armed conflict, such as military personnel who are out of combat and civilians who do not participate or stop participating in the conflict, and is referred to as Geneva Law. Another is Hague Law, which regulates the rules of conflict and limits the means and methods used in combat.

Today, the basic regulations on international
humanitarian law include nearly 600 articles in
total, the Geneva Conventions of 1949 and the
Additional Protocols of 1977. Türkiye ratified the
Conventions on February 10, 1954.

In the event of ongoing armed violence between the armed forces of the state and organized military groups or between organized military groups, there is an armed conflict that is not of an international nature. This is called non-international armed conflict (NIAC).

In any case where armed force is used between two or more states, there is an international armed conflict. This is called international armed conflict (IAC).

In order for an incident of violence to be considered within the scope of non-international armed conflict, it must have reached a certain minimum intensity, and the armed group or groups must have a certain minimum organization. Both criteria should be evaluated by taking into account the specifics of the concrete case. In the event of a noninternational armed conflict, common Article 3 of the Geneva Conventions, Additional Protocol No. 2, if applicable, and relevant customary international law norms will apply

In this context, let’s examine, for example, the intervention in Iraq by the USA and its allies. After the defeat of Iraqi forces in 2003, the US armed forces came to control a significant part of the country. In 2004, a new government was formed with the support of the USA; the aforementioned government requested that the coalition forces stay in the country in order to support its fight against non-state armed organizations. Therefore, the US forces provided support at the request of the Iraqi government in the conflicts between the Iraqi government and various armed groups. The intervention turned from an international armed conflict to a non-international armed conflict due to the establishment of the new government here, the consent of the coalition forces in the region, and the support of the foreign state soldiers to the local state in the fight against non-state armed organizations.

Children affected by armed conflict will also enjoy special respect and protection. In this
regard, international humanitarian law contains special regulations on the care of orphaned or separated children, the treatment of children under surveillance, and food and clothing. Parties to conflicts must ensure that unaccompanied minors under the age of 15 are not left on their own in order to protect children. Efforts should be made to reunite unaccompanied children with their families. All reasonable measures should be taken to prevent children under the age of 15 from taking part in armed conflict, and conscription of children should be avoided. While the Convention on the Rights of the Child9 regulated the same obligation as the humanitarian law regarding the parties to the conflict not to include children under the age of 15 in their armed forces, this age limit was increased to 18 with the Optional Protocol in May 2000. However, this regulation will only be valid for the states that have ratified the optional protocol.

It can be said that the most broadest group that will need to be protected in an armed conflict is the civilians. Anyone who does not fight under international humanitarian law is considered a civilian. In Article 75 of Protocol No. 1, various basic guarantees for civilians are listed. The main ones of these guarantees are humane treatment in all circumstances, non-discrimination, prohibition of killing, prohibition of torture, inhuman treatment, and all forms of cruelty to the dignity of the person, prohibition of corporal punishment, and prohibition of taking hostage. It is accepted that these guarantees constitute a customary rule for both international and non-international armed conflicts. In addition to the general protection afforded to civilians, international humanitarian law also provides for special protection for those who are subject to certain risks due to their gender, age, occupation, or status.

Prisoners of war cannot be prosecuted for lawful acts of war, as combatants have the right
to participate in conflicts. These people may be interned not because of their actions but because of their status. The purpose of internment is not to punish, but to prevent these people from participating in hostilities. Seriously wounded or sick prisoners of war should be returned or housed in neutral territory. It was envisaged that the prisoners of war would be released and returned at the end of the conflict. Civilian internees, on the other hand, do not have the right to participate in conflicts. These persons may be interned for
security reasons only as an exceptional measure. They have the right to appeal against the internment decision. The question of whether internment is necessary should be reviewed every six months by the competent court or administrative body. It was envisaged that civilian internees would be released as soon as the situation requiring their internment was eliminated.

In accordance with the principle of discrimination,
parties to an armed conflict should always distinguish between civilians and combatants, and civilian and
military targets. Attacks may only be directed at combatants or military targets. 

Combatant status is only available for international armed conflicts and includes members of the armed forces other than personnel enlisted solely for medical and religious purposes. Persons with combatant status have immunity from jurisdiction for lawful military actions taken during conflicts. This is called “warrior privilege”.

The fact that combatant status is not foreseen in terms of non-international conflicts does not lead to the evaluation of those who participate in the conflicts as civilians. Members of the armed forces are not excluded from attacks in non-international armed conflicts and may be targeted in accordance with the combat rules of humanitarian law. Similarly, the armed wing of a non-state group participating in an armed conflict can always be targeted. On the other hand, those who perform political or administrative
functions related to the non-state group that is a party to the conflict are considered civilians.

Under international humanitarian law, it is forbidden to attack people who are out of combat, called “hors de combat”. Anyone who falls into the hands of the enemy, is unable to defend himself because he is unconscious, injured or ill, and who clearly shows his intention to surrender is considered out of combat unless he commits a hostile act or attempts to escape.

Starvation of the civilian population is also prohibited by international humanitarian law. Therefore, attacking, destroying, or otherwise rendering out of use centers such as food stores, drinking water installations, which are necessary for the survival of civilians, is likely to constitute a violation of humanitarian law.