The First
Geneva Convention governing sick and wounded members of armed forces, signed in 1864
The
law of war is
a body of law concerning acceptable justifications to engage in
war (
jus ad bellum) and the limits to acceptable wartime conduct (
jus in bello). The law of war is considered an aspect of
public international law (the law of nations) and is distinguished from other bodies of law, such as the domestic law of a particular belligerent to a conflict, that may also provide legal limits to the conduct or justification of war.
Among other issues, modern laws of war address
declarations of war, acceptance of
surrender and the treatment of
prisoners of war,
military necessity along with
distinction and
proportionality, and the prohibition of certain
weapons that may cause unnecessary suffering.
[The Program for Humanitarian Policy and Conflict Research at Harvard University, "Brief Primer on IHL," Accessed at http://ihl.ihlresearch.org/index.cfm?fuseaction=page.viewpage&pageid=2083]Early sources and history
Attempts to define and regulate the conduct of individuals, nations, and other agents in war and to mitigate the worst effects of war have a long history. The earliest known instances are found in the Hebrew Bible (Old Testament). For example, Deuteronomy 20:19-20 limits the amount of acceptable collateral and environmental damage:
Similarly, Deuteronomy 21:10-15 requires that female captives be treated in a manner that in the ancient world (although of course not by present-day standards) was unusually humane.
[http://etext.virginia.edu/etcbin/toccer-new2?id=KjvDeut.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=21&division=div1] In the early 7th century, the first
Caliph,
Abu Bakr, whilst instructing his
Muslim army, laid down the following rules concerning warfare:
These rules were put into practice during the early
Muslim conquests of the 7th and 8th centuries. After the expansion of the
Caliphate,
Islamic legal treatises on
international law from the 9th century onwards covered the application of
Islamic military jurisprudence to international law,
including the
law of treaties; the treatment of
diplomats,
hostages,
refugees and
prisoners of war in Islam; the
right of asylum; conduct on the battlefield; protection of women, children and
non-combatant civilians;
contracts across the lines of
battle; the use of
poisonous weapons; and devastation of enemy territory. These laws were put into practice by Muslim armies during the
Crusades, most notably by
Saladin and Sultan
al-Kamil. For example, after al-Kamil defeated the
Franks,
Oliverus Scholasticus praised the Islamic laws of war, commenting on how al-Kamil supplied the defeated Frankish army with food:
In
medieval Europe, the
Roman Catholic Church also began promulgating teachings on
just war, reflected to some extent in movements such as the
Peace and Truce of God. The impulse to restrict the extent of warfare, and especially protect the lives and property of
non-combatants continued with
Hugo Grotius and his attempts to write laws of war.
Modern sources
The modern law of war is derived from two principal sources:
consists of
treaties (international agreements) which directly affect the laws of war by binding consenting nations and achieving widespread consent—see the section below called "
International treaties on the laws of war".
The opposite of positive laws of war is customary laws of war,
many of which were explored at the
Nuremberg War Trials. These laws define both the
permissive rights of states as well as
prohibitions on their conduct when dealing with
irregular forces and non-signatories.
Historian Geoffrey Best has called the period from 1856 to 1909 the law of war’s “epoch of highest repute.” The defining aspect of this epoch was the establishment, by states, of a positive legal or legislative foundation (i.e., written) superseding a regime based primarily on religion, chivalry, and customs. It is during this “modern” era that the international conference became the forum for debate and agreement between states and the “multilateral treaty” served as the positive mechanism for codification.
In addition, the Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity" held, under the guidelines
Nuremberg Principles, that treaties like the Hague Convention of 1907, having been widely accepted by "all civilised nations" for about half a century, were by then part of the customary laws of war and binding on all parties whether the party was a signatory to the specific treaty or not.
Interpretations of international humanitarian law change over time and this also affects the laws of war. For example
Carla Del Ponte, the chief prosecutor for the
International Criminal Tribunal for the former Yugoslavia pointed out in 2001 that although there is no specific treaty ban on the use of
depleted uranium projectiles, there is a developing scientific debate and concern expressed regarding the effect of the use of such projectiles and it is possible that, in future, there will be a consensus view in international legal circles that use of such projectiles violate general principles of the law applicable to use of weapons in armed conflict. This is because in future it may be the consensus view that depleted uranium projectiles breaches one or more of the following treaties:
The Universal Declaration of Human Rights; the
Charter of the United Nations; the
Genocide Convention; the
United Nations Convention Against Torture; the
Geneva Conventions including
Protocol I; the
Convention on Conventional Weapons of 1980; the
Chemical Weapons Convention; and the
Convention on the Physical Protection of Nuclear Material.
Purposes of the laws
It has often been commented that creating laws for something as inherently crimeful and lawless as war seems like a lesson in absurdity. However, based on the adherence to what amounted to customary international law by warring parties through the ages, it was felt that codifying laws of war would be beneficial.
Some of the central principles underlying laws of war are:
- Wars should be limited to achieving the political goals that started the war (e.g., territorial control) and should not include unnecessary destruction;
- Wars should be brought to an end as quickly as possible;
- People and property that do not contribute to the war effort should be protected against unnecessary destruction and hardship;
To this end, laws of war are intended to mitigate the
evils of war by:
- Facilitating the restoration of peace.
Example substantive laws of war
To fulfill the purposes noted above, the laws of war place substantive limits on the lawful exercise of a belligerent’s power. Generally speaking, the laws require that belligerents refrain from employing
violence that is not reasonably necessary for military purposes and that belligerents conduct hostilities with regard for the principles of
humanity and
chivalry.
However, because the laws of war are based on consensus, the content and interpretation of such laws are extensive, contested, and ever-changing. The following are particular examples of some of the substance of the laws of war, as those laws are interpreted today.
Declaration of war
Some treaties, notably the UN charter (1945) Article 2, and some other articles in the charter, seek to curtail the right of member states to declare war; as does the older
Kellogg-Briand Pact of 1928 for those nations who ratified it. However, despite this agreement, the Treaty of the Locarno formed the main basis for the charges against Germany after the war at Nuremberg.
Lawful conduct of belligerent actors
Modern laws of war regarding conduct during war (
jus in bellum), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, among them the wearing of a distinctive
uniform or other distinctive signs visible at a distance, and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform is allowed, though fighting in that uniform is unlawful
perfidy, as is the taking of
hostages.
The Red Cross, Red Crescent, & the white flag
Modern laws of war, such as the 1949 Geneva Conventions, also include prohibitions on attacking
doctors,
ambulances or
hospital ships displaying a
Red Cross, a
Red Crescent or other emblem related to the
International Red Cross and Red Crescent Movement. It is also prohibited to fire at a person or vehicle bearing a
white flag, since that indicates an intent to surrender or a desire to communicate.
In either case, persons protected by the Red Cross/Crescent or white flag are expected to maintain neutrality, and may not engage in warlike acts; in fact, engaging in war activities under a protected symbol is itself a violation of the laws of war known as
perfidy. Failure to follow these requirements can result in the loss of protected status and make the individual violating the requirements a lawful military target.
Applicability to States and Individuals
The law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their
armed forces. Parties are bound by the laws of war to the extent that such compliance does not interfere with achieving legitimate military goals. For example, they are obliged to make every effort to avoid damaging people and property not involved in combat, but they are not guilty of a war crime if a bomb mistakenly hits a residential area.
By the same token, combatants that use protected people or property as shields or camouflage are guilty of violations of laws of war and are responsible for damage to those that should be protected.
Remedies for violations
During conflict,
punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in
reprisal.
Soldiers who break specific provisions of the laws of war lose the protections and status afforded as
prisoners of war, but only after facing a "
competent tribunal" (
GC III Art 5). At that point they become an
unlawful combatant but they must still be "
treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by
GC IV Art 5. For example in 1976 foreign soldiers fighting for
FNLA were captured by the
MPLA in the civil war that broke out when
Angola gained independence from
Portugal in 1975. In the
Luanda Trial, after "
a regularly constituted court" found them guilty of being
mercenaries, three Britons and an American were shot by a
firing squad on
July 10,
1976. Nine others were imprisoned for terms of 16 to 30 years.
Spies and
terrorists may be subject to civilian law or military tribunal for their acts and in practice have been subjected to
torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. However, nations that have signed the
UN Convention Against Torture have committed themselves not to use torture on anyone for any reason. Citizens and soldiers of nations which have not signed the Fourth Geneva Convention are also not protected by it (Article 4: "
Nationals of a State which is not bound by the Convention are not protected by it".), whether they are spies or terrorists. Also, citizens and soldiers of nations which have not signed and do not abide by the Third and Fourth Geneva Conventions are not protected by them. (Common Article 2: "
[The High Contracting Parties] shall furthermore be bound by the Convention in relation to [a Power which is not a contracting party], if the latter accepts and applies the provisions thereof" (emphasis added).)
If someone is (or is suspected to be) a citizen or soldier of a nation which has signed or abides by the Fourth Geneva Convention (see Art. 2 and Art. 4 citations above), or is (or is suspected to be) a "
prisoner of war" (POW) per the definitions of such "
protected persons" in the Third Geneva Convention (see Art. 4 and Art. 5), the following applies: A POW who breaks specific provisions of the laws of war may be penalized, but not penalized worse than the tribunal would penalize its own soldiers for the same offense (and usually a disciplinary, not judicial, punishment if its own soldiers normally wouldn't be brought to trial for a particular offense) and POW's may not be penalized based on rank or gender, nor with corporal punishment,
collective punishments for individual acts, lack of daylight, or torture/cruelty (GC IV, Art. 82 through Art. 88).
After a conflict has ended, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for
war crimes through process of
law. Also, nations which signed the Geneva Conventions are required to search for, then try and punish, anyone who has committed or ordered certain "
grave breaches" of the laws of war. (see GC III, Art. 129 and Art. 130)
History has shown that the laws of war are traditionally more strictly applied to those defeated, as the victorious faction are placed in the role of policing themselves. While it can be argued that the victors may be less strict on their own forces, it can also be argued that the signing of the treaties involved in the laws of war implies a good-faith promise to adhere to them equally. As with many facets of war, the aftermath and subsequent legal proceedings depend heavily on circumstance, and are different for each conflict.
There is an emerging trend in the US to hold private corporations civilly liable for aiding and abetting in war crimes, by knowingly providing substantial assistance in the commission of the crimes. Under international law, the
mens rea element is knowledge, not intent that the crimes be carried out. This opens the door not only to hold private security contractors liable, but also other kinds of corporations which employ violent mercenary or terrorist groups as private security forces. Although conflict zones often lack functioning legal systems, and government may even have passed laws immunizing private mercenaries from criminal liability, aiding and abetting a war crime can still be the basis for civil liability in a foreign court with jurisdiction over the defendant corporation.
Role of the United States
While many point correctly to the
Lieber Code, which was promulgated by the Union during the
American Civil War, as critical in the development of the laws of land warfare, one researcher who analyzed the evolution of these laws concludes that "following the publication of Lieber’s code as General Orders 100 in 1863, the United States did not effectively contribute anything to The Hague Laws relating to land warfare as they evolved during this period." This was probably because the United States was involved in only one armed conflict (the Spanish-American War) in the time period immediately following the Lieber Code and the coming into force of 4th Hague. As the Lieber Code was a comprehensive written recital of the customary law of war in force at the time between the
civilized nations and peoples, and 4th Hague was essentially a written recital of the Lieber Code, the United States had nothing further to contribute, having already "written the book" on the laws of war, so to speak.
Roles of laws of war in the United States military
The Hague and Geneva Conventions guide military rules of action for US forces. They can be summarized as:
- Fight only enemy combatants.
- Do not harm enemies who surrender; disarm them and turn them over to the chain of command.
- Do not kill or torture detainees.
- Collect and care for the wounded, whether friend or foe.
- Do not attack medical personnel, facilities, or equipment.
- Destroy no more than the mission requires.
- Treat all civilians humanely.
- Do not steal; respect private property and possessions.
- Do one’s best to prevent violations of the law of war.
- Report all violations of the law of war to superiors.
International treaties on the laws of war
List of declarations, conventions, treaties and judgements and on the laws of war:
- 1864 First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field"
- 1874 Project of an International Declaration concerning the Laws and Customs of War (Brussels Declaration). Signed in Brussels 27 August. This agreement never entered into force, but formed part of the basis for the codification of the laws of war at the 1899 Hague Peace Conference.
[ ICRC cites D.Schindler and J.Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp.22-34.]
- 1880 Manual of the Laws and Customs of War at Oxford. At its session in Geneva in 1874 the Institute of International Law appointed a committee to study the Brussels Declaration of the same year and to submit to the Institute its opinion and supplementary proposals on the subject. The work of the Institute led to the adoption of the Manual in 1880 and it went on to form part of the basis for the codification of the laws of war at the 1899 Hague Peace Conference.
- 1899 Hague Conventions consisted of four main sections and three additional declarations (the final main section is for some reason identical to the first additional declaration):
- * I - Pacific Settlement of International Disputes
- * II - Laws and Customs of War on Land
- * III - Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864
- * IV - Prohibiting Launching of Projectiles and Explosives from Balloons
- * Declaration I - On the Launching of Projectiles and Explosives from Balloons
- * Declaration II - On the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases
- * Declaration III - On the Use of Bullets Which Expand or Flatten Easily in the Human Body
- 1907 Hague Conventions had thirteen sections, of which twelve were ratified and entered into force and two declarations
- * I - The Pacific Settlement of International Disputes
- * II - The Limitation of Employment of Force for Recovery of Contract Debts
- * III - The Opening of Hostilities
- * IV - The Laws and Customs of War on Land
- * V - The Rights and Duties of Neutral Powers and Persons in Case of War on Land
- * VI - The Status of Enemy Merchant Ships at the Outbreak of Hostilities
- * VII - The Conversion of Merchant Ships into War-Ships
- * VIII - The Laying of Automatic Submarine Contact Mines
- * IX - Bombardment by Naval Forces in Time of War
- * X - Adaptation to Maritime War of the Principles of the Geneva Convention
- * XI - Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War
- * XII - The Creation of an International Prize Court [Not Ratified]*
- * XIII - The Rights and Duties of Neutral Powers in Naval War
- * Declaration I - extending Declaration II from the 1899 Conference to other types of aircraft
- * Declaration II - on the obligatory arbitration
- 1923 Hague Draft Rules of Aerial Warfare
- 1925 Geneva protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare
- 1938 Amsterdam Draft Convention for the Protection of Civilian Populations Against New Engines of War.
- 1938 League of Nations declaration for the "Protection of Civilian Populations Against Bombing From the Air in Case of War"
- 1971 Zagreb Resolution of the Institute of International Law on Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which the United Nations Forces May be Engaged
- 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
- 1977 Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts
- 1978 Red Cross Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts
- * 1980 Protocol I on Non-Detectable Fragments
- * 1980 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices
- * 1980 Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons
- * 1995 Protocol IV on Blinding Laser Weapons
- * 1996 Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices
- * Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention), 28 November 2003, entered into force on 12 November 2006
- 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea.
- 1994 ICRC/UNGA Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conflict
- 1994 UN Convention on the Safety of United Nations and Associated Personnel
See also
