Laws of war

The two parts of the laws of war: Law concerning acceptable practices while engaged in war, like the Geneva Conventions, is called jus in bello; while law concerning allowable justifications for armed force is called jus ad bellum.

It is worth noting that these laws are applicable only to nations which approve and consent to bind to them, usually in the form of international organizations or diplomacy. The Geopolitics of a particular era often dictate which laws are enforced, and by whom.

Sources of the laws of war

The laws of war, foremost the United Nations Charter, the Geneva conventions and the Hague conventions, bind consenting nations and have achieved widespread consent. There are also customary rules 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"Judgement : The Law Relating to War Crimes and Crimes Against Humanity contained in the Avalon Project archive at Yale Law School. 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.

Purposes of the laws

It has often been commented that creating laws for something as inherently lawless as war seems like a lesson in absurdity. But 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:
* That wars should be limited to achieving the political goals that started the war (e.g., territorial control) and should not include unnecessary destruction
* That wars should be brought to an end as quickly as possible
* That people and property that do not contribute to the war effort 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; and
* Facilitating the restoration of peace.

Conduct of warfare

Among other issues, the laws of war address declaration of war, acceptance of surrender and the treatment of prisoners of war; the avoidance of atrocities; the prohibition on deliberately attacking civilians; and the prohibition of certain inhumane weapons. 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 easily identifiable badge and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform and fighting in that uniform is forbidden, as is the taking of hostages.

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 Germany at the Nuremberg War Trials for waging an aggressive war.

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.

Prohibitory effects

Well-known examples of such laws include the prohibition on attacking doctors or ambulances displaying a Red Cross, a Red Crescent or other emblem related to the International Federation of the Red Cross (this sometimes leads to confusion when the British military is involved, where certain regiments use the English flag, which is also a red cross). 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.

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. 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. (Article 2, of both Conventions: "[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". note: 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 whom has committed or ordered certain "grave breaches" of the laws of war. (see GC III, Art. 129 and Art. 130)

In general, the laws of war are most strictly applied to the losers of war, with only the victorious faction having the power to prosecute themselves for their own violations, which tends to be less harsh than the prosecution of the losers.

References

*Documents on the Laws of War, (Third Edition) Ed. by Adam Roberts and Richard Guelff, Oxford University press, ISBN 0198763905

Laws of war: Encyclopedia BETA

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