The current legal framework for the employment of French armed forces suffers from political and doctrinal weaknesses: political, because the refusal to recognise armed conflict situations for what they are is leading to excessive reference to ‘crises’, in which it is not possible in itself to justify the use of extended force; doctrinal, because it is clear that the French forces do not have any single and clear overall document for use by the command structure, in contrast to the British, for example. We need now to act at an institutional level and begin working on doctrine within the forces in order to go beyond the existing Article L 4123-12 II of the Defence Code, which allows for ad hoc exemption from criminal prosecution.
An Unchallengeable Law on Operations
Even though the use of force by French armed forces in overseas operations (OPEX) is becoming more intense every day, there is persistent caution in the political vocabulary employed, notably in its rejection of the term ‘armed conflict’. We have heard, for example, the word ‘securing’(1) to describe the mission of French troops in Afghanistan.
There is nothing new in such manipulation of language, which results from a refusal to distinguish friend from foe. The report by a study group on UN peace operations (the Brahimi report(2)) noted the same thing in August 2000, recognising that during the 1990s nothing had been more prejudicial to the reputation and credibility of the UN in terms of peacekeeping than its reluctance to distinguish between the victim and his aggressor. There is no point in debating the difference between war and armed conflict. What is important is the special legal status (lex specialis) created by the dual decision to have recourse to armed force and to give it a capacity for coercion. Thus war or armed conflict is a natural extension of a political decision—a straightforward social phenomenon.(3) Standard doctrinal classification distinguishes The Hague Convention, which lists the rules for the conduct of hostilities, from The Geneva Convention, which sets rules for the treatment of people in enemy hands.(4) Whilst these and other international conventions are designed to have a moderating effect on such war or armed conflict, they do above all recognise the function of the combatant who, having the monopoly on state-supported violence, retains the privilege of killing his enemy.(5)
The word ‘crisis’ that falls from everyone’s lips today, and the lack of reference to armed conflict, upsets the balance of an otherwise coherent political and legal environment based upon the sovereignty of the State. Furthermore, there is no ‘law of international crisis’ that could be applied in place of the Law of Armed Conflict (LOAC). It is probably true to say that contemporary operations are conducted in a complex and changing environment. It is equally true that their national and international legal framework is unsatisfactory.
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