The Use of Force in Armed Conflicts: Conduct of Hostilities, Law Enforcement and Self-Defense

Abstract

In modern warfare, military forces are expected to use lethal or potentially lethal force in a variety of contexts ranging from combat operations against the adversary to maintaining law and order or responding to imminent threats to life or limb. In practice, it may not be easy to distinguish between these various situations, which may overlap, as for instance when fighters hide among rioting civilians or demonstrators. Situations of violence may also be volatile and quickly evolve from mere civilian unrest to armed clashes. This factual or operational complexity is accompanied by a legal complexity. Different legal regimes and “paradigms” govern the use of force. From an international law perspective, the use of force by armed forces and law enforcement officials is governed by two different paradigms: the conduct of hostilities paradigm, derived from international humanitarian law (IHL), and the law enforcement paradigm, mainly derived from international human rights law (IHRL). Additionally, armed forces frequently refer to the concept of self-defense at various levels (State, unit, personal) as encompassed in numerous rules of engagement. The legal sources of these concepts and interplay with IHL and HRL remain often unsettled and deserve being clarified. This chapter aims at addressing the legal complexities in identifying governing use of force rules through the analysis of various situations/scenarios that are typical of contemporary military operations.