MARCH 2026 | 1ST EDITION | CONSTRUCTION LAW

WAR AND THE RULE OF LAW: DOES INTERNATIONAL LAW STILL MATTER?

As global conflicts continue to dominate headlines, a critical question arises: to what extent is war still governed by law? While conflict may appear unpredictable and politically driven, there remains a structured legal framework that regulates both the decision to go to war and the conduct of parties during armed conflict.

For businesses and individuals operating in an increasingly interconnected global environment, understanding this framework is not merely theoretical; it has direct implications for compliance, risk exposure, and commercial decision-making. In this edition, we unpack the legal architecture of modern warfare and consider its relevance in the current geopolitical climate, including its implications for South Africa.

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THE LEGAL FRAMEWORK
GOVERNING ARMED CONFLICT

International law recognises that while war cannot always be prevented, it must be regulated. This regulation takes place through two distinct but related legal frameworks:

JUS AD BELLUM - WHEN IS WAR LAWFUL?

The starting point is the United Nations Charter, which generally prohibits the use of force between states under Article 2(4). This reflects a fundamental principle of international law that states should resolve disputes through peaceful means.

There are, however, limited exceptions:

Self-defence (Article 51): A state may use force if it is responding to an armed attack. Such force must meet requirements of necessity and proportionality.
UN Security Council authorisation: The Security Council may permit the use of force to maintain or restore international peace and security.

In practice, disputes often arise as to whether these conditions have been satisfied, which is why the legality of modern conflicts is frequently contested.

JUS IN BELLO - HOW MUST WAR BE CONDUCTED?

Even where the use of force is considered lawful (or disputed), the conduct of hostilities is strictly regulated by International Humanitarian Law (IHL). IHL is primarily derived from the Geneva Conventions, their Additional Protocols, and customary international law. These rules are designed to limit human suffering and protect those not participating in hostilities.

Key principles include:

Distinction: Parties must distinguish between combatants and civilians. Direct attacks on civilians are prohibited.
Proportionality: Incidental civilian harm must not be excessive in relation to the anticipated military advantage.
Necessity: Force must be limited to what is required to achieve a legitimate military objective

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DID YOU KNOW?

The Geneva Conventions of 1949 are among the most widely ratified treaties in the world, with every UN member state bound by them. This near-universal acceptance reflects a global consensus that, even in war, there must be limits to protect human life and dignity.

INTERNATIONAL CRIMINAL ACCOUNTABILITY

Where serious violations occur, individuals - not just states - may be held accountable under international law.

The International Criminal Court (ICC) has jurisdiction over:

War crimes
Crimes against humanity
Genocide

South Africa is a party to the Rome Statute and has incorporated its obligations into domestic law. This includes duties to cooperate with the ICC, such as executing arrest warrants where applicable.

However, enforcement remains one of the most significant challenges in international law. The ICC does not have its own enforcement arm and relies on member states to act.

This can create tension between:

Legal obligations under international law, and
Domestic political or diplomatic considerations

SOUTH AFRICA'S LEGAL POSITION

South Africa is bound by several key international legal instruments, including:

The Geneva Conventions, governing conduct in armed conflict
The Rome Statute, establishing obligations toward the ICC

These commitments impose clear legal duties, including:

The obligation to prevent and prosecute international crimes
The duty to cooperate with international judicial institutions

At the same time, South Africa’s foreign policy approach is often described as non-aligned, which can create tension between:

Its international legal obligations, and
Its political and diplomatic relationships, including within BRICS and with Western trading partners

This balancing act places South Africa in a complex legal and geopolitical position.

A NOTE ON CURRENT CONFLICTS

Recent global conflicts have brought renewed scrutiny to the application of international law, particularly in relation to:

The targeting of civilian infrastructure
The scale of civilian harm
The use of certain weapons systems

While formal legal determinations require investigation and adjudication by competent bodies, these developments highlight an important reality: International law continues to apply, even where compliance is disputed or enforcement is uneven.

WHY THIS MATTERS FOR BUSINESS

Although these issues may appear removed from day-to-day commercial operations, they have practical implications for South African businesses:

Sanctions risk: Exposure to entities or jurisdictions subject to international or unilateral sanctions
Supply chain disruption: Conflict-related instability affecting logistics, pricing, and availability of goods - particularly in energy markets
Reputational exposure: Increased scrutiny when operating in or engaging with high-risk jurisdictions

An understanding of the legal framework governing conflict is therefore essential for proactive risk management and compliance.

JBCC

SECURE YOUR GLOBAL FOOTPRINT

In next week’s edition, we explore the economic and legal consequences of conflict, with a focus on oil markets, sanctions regimes, and the resulting risks for South African businesses.

If you would like assistance assessing your exposure to international legal or sanctions-related risks, please contact our team.

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WAR AND THE RULE OF LAW: DOES INTERNATIONAL LAW STILL MATTER?

THE LEGAL FRAMEWORK GOVERNING ARMED CONFLICT

DID YOU KNOW?

SECURE YOUR GLOBAL FOOTPRINT

NEED SPECIFIC GUIDANCE?

WRITINGS OF THE FIRM

POINTS BEFORE COFFEE: AARTO IS LIVE, AND DEMERITS ARE NEXT

SURVIVING THE BOARDS: PRACTICAL TIPS FROM A CANDIDATE ATTORNEY

THE SOCCER WORLD CUP'S OTHER SCOREBOARD: PIRACY, ILLEGAL BETTING, AND THE LAW

BOOK A CONSULTATION

THE LEGAL FRAMEWORK
GOVERNING ARMED CONFLICT