Laws of war

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The First Geneva Convention governing sick and wounded members of armed forces, signed in 1864

The law of war (also law of armed conflict, LOAC) is law concerning acceptable practices relating to war. In cases other than civil wars, it is considered an aspect of public international law (the law of nations). The laws of war are divided into two categories:

• Jus in bello, law concerning acceptable conduct in war.
• Jus ad bellum, law concerning acceptable justifications to use armed force.

[edit] Sources of the laws of war

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 limits the amount of collateral and environmental damage: "When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof by wielding an axe against them; for thou mayest eat of them, but thou shalt not cut them down; for is the tree of the field man, that it should be besieged of thee? Only the trees of which thou knowest that they are not trees for food, them thou mayest destroy and cut down, that thou mayest build bulwarks against the city that maketh war with thee, until it fall." 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. In the early 7th century, the first Caliph, Abu Bakr, whilst instructing his Muslim army, laid down the following rules concerning warfare:

Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.^[1]

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,^[2] 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:^[3]

Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.^[4]

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.

Positive international humanitarian law 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.

In addition, the Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity"^[5] 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.^[6] 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.^[7]

[edit] 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:

• Protecting both combatants and noncombatants from unnecessary suffering;
• Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians;
• Facilitating the restoration of peace.

[edit] Conduct of warfare

Among other issues, the laws of war address declaration of war, acceptance of surrender and the treatment of prisoners of war; military necessity along with distinction and proportionality; and the prohibition of certain inhumane weapons which cause unnecessary suffering.

It is a violation of the laws of war 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, like fighting under a white flag, is perfidy which is forbidden, as is the taking of hostages.

[edit] Land warfare

The Law of Land Warfare is that part of the Laws of War applicable to the conduct of warfare on land (territory) and to relationships between belligerents and neutral states. The conduct of armed hostilities on land is regulated by the law of land warfare which is both written and unwritten. The transition from unwritten to written began in 1856. In fact, historian Geoffrey Best has called the period from 1856 to 1909 the law of war’s “epoch of highest repute.”^[8] 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.^[9] 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.

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,^[10] one researcher who analyzed the evolution of these laws^[11] 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."^[12] 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.

[edit] Prohibitory effect

The law of war places limits on the exercise of a belligerent’s power mentioned under Purposes and requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.

[edit] Binding both on 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.

[edit] Sources of the law

The law of war is derived from two principal sources:

• Lawmaking treaties (or conventions) — see the section below called "International treaties on the laws of war".
• Custom. Not all the law of war derives from or has been incorporated in such treaties, which can refer to the continuing importance of customary law. (see Martens Clause). Such customary international law is established by the general practice of nations together with their acceptance that such practice is required by law.

[edit] 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. The Kellogg-Briand Pact was used against those charged at the Nuremberg War Trials in Germany post-World War II for waging an aggressive war.

[edit] Violations and applicability

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.^{[citation needed]}

[edit] Prohibitory effects

Well-known examples of such laws include the prohibition 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 (this sometimes leads to confusion when the British military is involved, where certain regiments use the English flag, which is also a red cross).^{[citation needed]} 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, the persons protected by the Red Cross or white flag are expected to maintain neutrality, and may not engage in warlike acts; in fact, engaging in war activities under a white flag or red cross 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.

[edit] 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.^{[citation needed]} 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.^{[citation needed]} 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.

[edit] International treaties on the laws of war

see also List of international declarations

List of declarations, conventions, treaties and judgements and on the laws of war:^[13][14][15]

• 1856 Paris Declaration Respecting Maritime Law abolished privateering
• 1864 First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field"
• 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive projectiles Under 400 grams Weight
• 1874 Project of an International Declaration concerning the Laws and Customs of War (Brussels Declaration).^[16] 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.^[17][18]
• 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.^[18]
• 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
• 1909 London Declaration concerning the Laws of Naval War largely reiterated existing law, although it showed greater regard to the rights of neutral entities. Never went into effect.
• 1922 The Washington Naval Treaty, also known as the Five-Power Treaty (6 February)
• 1923 Hague Draft Rules of Aerial Warfare^[19]
• 1925 Geneva protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare^[20]
• 1927-1930 Greco-German arbitration tribunal
• 1928 Kellogg-Briand Pact (also known as the Pact of Paris)
• 1929 Geneva Convention, Relative to the treatment of prisoners of war
• 1930 Treaty for the Limitation and Reduction of Naval Armament (London Naval Treaty 22 April)
• 1936 Second London Naval Treaty (25 March)
• 1938 Amsterdam Draft Convention for the Protection of Civilian Populations Against New Engines of War.^[21]
• 1938 League of Nations declaration for the "Protection of Civilian Populations Against Bombing From the Air in Case of War"^[22]
• 1945 United Nations Charter (entered into force on October 24, 1945)
• 1946 Judgment of the International Military Tribunal at Nuremberg
• 1947 Nuremberg Principles. formulated under UN General Assembly Resolution 177 21 November 1947
• 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide.
• 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
• 1949 Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
• 1949 Geneva Convention III Relative to the Treatment of Prisoners of War
• 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War
• 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
• 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 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques
• 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 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW)
  • 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^[23]
• 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea.^[24]
• 1994 ICRC/UNGA Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conflict^[25]
• 1994 UN Convention on the Safety of United Nations and Associated Personnel^[26]
• 1996 The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons
• 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Treaty)
• 1998 Rome Statute of the International Criminal Court entered into force on 1 July 2002.
• 2000 Optional Protocol on the Involvement of Children in Armed Conflict, entered into force on 12 February 2002.

[edit] See also

• Rule of Law in Armed Conflicts Project (RULAC)
• Command responsibility
• Debellatio
• International Humanitarian Law
• International law
• Islamic military jurisprudence
• Law of Armed Conflict
• Law of occupation
• Law of the Sea
• Lieber Code
• Nuremberg Principles
• Right of conquest
• Total war

[edit] Links

• International Law of War Association

[edit] References

• Roberts, Adam and Guelff, Richard (Editors); Documents on the Laws of War; Third Edition; Oxford University press; ISBN 0-19-876390-5
• Texts and commentaries of 1949 Geneva Conventions & Additional Protocols

[edit] Further reading

• 1976: Death sentence for mercenaries (source BBC).
• The Rule of Law in Armed Conflicts Project
• A Brief History Of The Laws Of War.
• Crimes, Trials and Laws.
• For the Sake of Warriors: Accepting the Limits of the Law of War.
• The Yearbook of International Humanitarian Law and free access to a Documentation Database of primary source materials..
• Trial of Otto Skorzeny and Others, General Military Government Court of the U.S. Zone of Germany, 18 August to 9 September, 1947.
• When the Law of War Becomes Over-lawyered, JURIST.
• International Law on the Bombing of Civilians (Gene Dannen).
• A Brief Primer on International Law, 2007. With cases and commentary. (Nathaniel Burney).
• What is a war crime? BBC online 31 July 2003 (Tarik Kafala).
• Sharon cannot be tried in Belgium, says court The Guardian 15 February, 2002 (Andrew Osborn).
• reviews of Michael Byers, War Law, and David Kennedy, Of War and Law, Democratiya, Autumn 2007 (Irfan Khawaja).
• UN Charter

[edit] Footnotes

War portal

law portal

United Nations portal

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