Law of Armed Conflict: Consent to Violence?

Muhammad Harieth bin Zaini, Dr. Nabeel Mahdi Althabhawi

Faculty of Law, the National University of Malaysia

War, or now known as armed conflict had been one of the means and methods for settling disputes between States and any belligerent parties for ages. Nowadays, armed conflict often happens when a party demands their ideology or interest to prevail before others. To cater this problem, the world had developed a ‘guideline’ in what we can, and we cannot do in situation of armed conflicts. The infamous tagline ‘even war has limits’ had been cried out all over the world, to highlight the importance of the law of armed conflict.

There are many laws that had been developed under the scope of armed conflict, which are directly under width of public international law. For example, the international humanitarian law, which highlighted the importance of protecting the affected parties which are not directly participating in such hostile situation of war. The world has gotten together in this effort by drafting many conventions to reconcile the effect of armed conflict, such as the Hague Convention 1907, Geneva Convention 1949 and its Additional Protocol, Refugee Convention 1951 and many more. There are also conventions to limit the means and methods of armed conflict such as Anti-Personnel Landmines Convention 1997, Convention of Certain Conventional Weapons 2001 and many more. However, there comes a question, does all this so-called ‘limiting conventions’ gives consent to violence?

We can view the law of armed conflict from the eyes of sociological school of thought. Eugen Ehrlich stated that society as a main source of law, which society being ‘association of men’. Thus, whatever society had decided to do, it is for the best of mankind. In the situation of law of armed conflict, society; states had decided that limiting, not preventing, is the way to cater issues during armed conflict. This is because it is difficult to control billions of people from quarrelling with each other, but to limit the effect to others is easier. This is aligned with Roscoe Pound, as he said, law should be studied in its actual working, not as it stands in the book. Thus, law of armed conflict is more practical to be used to not let others suffer, even though preventing is more ideal.

Law of armed conflict aims to limit the suffering of people during armed conflict, which clearly does not give consent to violence, as it aims to limit the violence. From the view of sociologist, law is a social engineering, which is designed controls and dictates what people can and cannot do, just like an engineered system of technology. Law of armed conflict gives the guidelines on how an armed conflict can be carried out, with limitations to make sure that there is no inappropriate violence conducted during the event.

In conclusion, law of armed conflict does not give consent to violence, in fact it is the main reason why violence cannot happen in the first place.