The law of war is a component of international law that regulates the conditions for initiating war (jus ad bellum) and the conduct of hostilities (jus in bello). Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of law.
The law of war is considered distinct from other bodies of law—such as the domestic law of a particular belligerent to a conflict—which may provide additional legal limits to the conduct or justification of war.
Early sources and history
The first traces of a law of war come from the Babylonians. It is the Code of Hammurabi,[3] king of Babylon, which in 1750 B.C., explains its laws imposing a code of conduct in the event of war:
I prescribe these laws so that the strong do not oppress the weak.
In ancient India, the Mahabharata and the texts of Manou's law urged mercy on unarmed or wounded enemies. The Bible and the Qur'an also contain rules of respect for the adversary. It is always a matter of establishing rules that protect civilians and the defeated.
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 Mahabharata and the Old Testament (Torah). In the Indian subcontinent, the Mahabharata describes a discussion between ruling brothers concerning what constitutes acceptable behavior on a battlefield, an early example of the rule of proportionality:[citation needed]
One should not attack chariots with cavalry; chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him ... War should be waged for the sake of conquest; one should not be enraged toward an enemy who is not trying to kill him.
An example from the Book of Deuteronomy 20:19–20 limits the amount of environmental damage, allowing only the cutting down of non-fruitful trees for use in the siege operation, while fruitful trees should be preserved for use as a food source.[citation needed] Similarly, Deuteronomy 21:10–14 requires that female captives who were forced to marry the victors of a war, then not desired anymore, be let go wherever they want, and requires them not to be treated as slaves nor be sold for money.[citation needed]
In the early 7th century, the first Sunni Muslimcaliph, Abu Bakr, whilst instructing his Muslim army, laid down rules against the mutilation of corpses, killing children, females and the elderly. He also laid down rules against environmental harm to trees and slaying of the enemy's animals:
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.[4][5]
In the history of the early Christian church, many Christian writers considered that Christians could not be soldiers or fight wars. Augustine of Hippo contradicted this and wrote about 'just war' doctrine, in which he explained the circumstances when war could or could not be morally justified.
In 697, Adomnan of Iona gathered Kings and church leaders from around Ireland and Scotland to Birr, where he gave them the 'Law of the Innocents', which banned killing women and children in war, and the destruction of churches.[6]
General Principles. "Certain fundamental principles provide basic guidance. For instance, the principles of distinction, proportionality, and necessity, all of which are part of customary international law, always apply to the use of armed force."[1]
Positiveinternational humanitarian law consists of treaties (international agreements) that directly affect the laws of war by binding consenting nations and achieving widespread consent.
The opposite of positive laws of war is customary laws of war,[1] 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.
The Treaty of Armistice and Regularization of War signed on November 25 and 26, 1820 between the president of the Republic of Colombia, Simón Bolívar and the Chief of the Military Forces of the Spanish Kingdom, Pablo Morillo, is the precursor of the International Humanitarian Law.[7] The Treaty of Guadalupe Hidalgo, signed and ratified by the United States and Mexico in 1848, articulates rules for any future wars, including protection of civilians and treatment of prisoners of war.[8] The Lieber Code, promulgated by the Union during the American Civil War, was critical in the development of the laws of land warfare.[9]
Historian Geoffrey Best called the period from 1856 to 1909 the law of war's "epoch of highest repute."[10] The defining aspect of this period 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.[11] 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.
The Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity"[12] 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.
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 humanitarian law by warring parties through the ages, it was believed by many, especially after the eighteenth century, that codifying laws of war would be beneficial.[15]
Some of the central principles underlying laws of war are:[citation needed]
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 hardships of war by:
Safeguarding certain fundamental human rights of protected persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, children, and protected civilians.
The idea that there is a right to war concerns, on the one hand, the jus ad bellum, the right to make war or to enter war, assuming a motive such as to defend oneself from a threat or danger, presupposes a declaration of war that warns the adversary: war is a loyal act, and on the other hand, jus in bello, the law of war, the way of making war, which involves behaving as soldiers invested with a mission for which all violence is not allowed. In any case, the very idea of a right to war is based on an idea of war that can be defined as an armed conflict, limited in space, limited in time, and by its objectives. War begins with a declaration (of war), ends with a treaty (of peace) or surrender agreement, an act of sharing, etc.[16]
Principles of the laws of war
A 1904 article outlining the basic principles of the law of war, as published in the Tacoma Times.
Military necessity is governed by several constraints: an attack or action must be intended to help in the defeat of the enemy; it must be an attack on a legitimate military objective,[17] and the harm caused to protected civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.[18]
Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and protected civilians.[a][19]
Proportionality is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must make sure that the harm caused to protected civilians or civilian property is not excessive in relation to the concrete and direct military advantage expected by an attack on a legitimate military objective.[18] However, as Robbie Sabel, Professor of international law at the Hebrew University, who has written on this topic, notes: “Anyone with experience in armed conflict knows that you want to hit the enemy’s forces harder than they hit you… if you are attacked with a rifle, there is no rule that stipulates that you can only shoot back with a rifle, but using a machine gun would not be fair, or that if you are attacked with only one tank you cannot shoot back with two.”[20]
Humanity is a principle based on the 1907 Hague Convention IV - The Laws and Customs of War on Land restrictions against using arms, projectiles, or materials calculated to cause suffering or injury manifestly disproportionate to the military advantage realized by the use of the weapon for legitimate military purposes. In some countries, weapons are reviewed prior to their use in combat to determine if they comply with the law of war and are not designed to cause unnecessary suffering when used in their intended manner. This principle also prohibits using an otherwise lawful weapon in a manner that causes unnecessary suffering.[21]
Honour is a principle that demands a certain amount of fairness and mutual respect between adversaries. Parties to a conflict must accept that their right to adopt means of injuring each other is not unlimited, they must refrain from taking advantage of the adversary's adherence to the law by falsely claiming the law's protections, and they must recognize that they are members of a common profession that fights not out of personal hostility but on behalf of their respective States.[21]
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 (as the nature of international law often relies on self-policing by individual states), the content and interpretation of such laws are extensive, contested, and ever-changing.[22]
The following are particular examples of some of the substance of the laws of war, as those laws are interpreted today.
Section III of the Hague Convention of 1907 required hostilities to be preceded by a reasoned declaration of war or by an ultimatum with a conditional declaration of war.
Some treaties, notably the United Nations Charter (1945) Article 2,[23] and 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.[24] These have led to fewer modern armed conflicts being preceded by formal declarations of war, undermining the objectives of the Hague Convention.
Lawful conduct of belligerent actors
Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements. Article 4(a)(2) of the Geneva Convention relative to the Treatment of Prisoners of War recognizes Lawful Combatants by the following characteristics:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly; and
(d) That of conducting their operations in accordance with the laws and customs of war.[25]
Impersonating enemy combatants by wearing the enemy's uniform is possibly allowed, however the issue is unsettled. Fighting in that uniform is unlawful perfidy,[26] as is the taking of hostages[citation needed].
Combatants also must be commanded by a responsible officer. That is, a commander can be held liable in a court of law for the improper actions of their subordinates. There is an exception to this if the war came on so suddenly that there was no time to organize a resistance, e.g. as a result of a foreign occupation.[citation needed]
Modern laws of war, specifically within Protocol I additional to the 1949 Geneva Conventions, prohibits attacking people parachuting from an aircraft in distress regardless of what territory they are over. Once they land in territory controlled by the enemy, they must be given an opportunity to surrender before being attacked unless it is apparent that they are engaging in a hostile act or attempting to escape. This prohibition does not apply to the dropping of airborne troops, special forces, commandos, spies, saboteurs, liaison officers, and intelligence agents. Thus, such personnel descending by parachutes are legitimate targets and, therefore, may be attacked, even if their aircraft is in distress.
Red Cross, Red Crescent, Magen David Adom, and the white flag
In either case, people protected by the Red Cross/Crescent/Star 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 target.[27]
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 or the war effort, but they are not guilty of a war crime if a bomb mistakenly or incidentally hits a residential area.[citation needed]
By the same token, combatants that intentionally use protected people or property as human shields or camouflage are guilty of violations of the laws of war and are responsible for damage to those that should be protected.[27]
Mercenaries
The use of contracted combatants in warfare has been an especially tricky situation for the laws of war. Some scholars claim that private security contractors appear so similar to state forces that it is unclear if acts of war are taking place by private or public agents.[28]International law has yet to come to a consensus on this issue.
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.[citation needed]
After a conflict ends, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes. Also, nations that signed the Geneva Conventions are required to search for, try and punish, anyone who had committed or ordered certain "grave breaches" of the laws of war. (Third Geneva Convention, Article 129 and Article 130.)
Combatants who break specific provisions of the laws of war are termed unlawful combatants. Unlawful combatants who have been captured may lose the status and protections that would otherwise be afforded to them as prisoners of war, but only after a "competent tribunal" has determined that they are not eligible for POW status (e.g., Third Geneva Convention, Article 5.) At that point, an unlawful combatant may be interrogated, tried, imprisoned, and even executed for their violation of the laws of war pursuant to the domestic law of their captor, but they are still entitled to certain additional protections, including that they be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial." (Fourth Geneva Convention Article 5.)
1864 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.[32]
1868 St. Petersburg Declaration, officially the Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, renounced the usage of explosive projectiles with a mass of less than 400 grams.
1874 Project of an International Declaration concerning the Laws and Customs of War (Brussels Declaration).[33] 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.[34][35]
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.[35]
1899 Hague Conventions consisted of three main sections and three additional declarations:
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
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
1938 Amsterdam Draft Convention for the Protection of Civilian Populations Against New Engines of War. (Officially the Draft Convention for the Protection of Civilian Populations Against New Engines of War. Amsterdam, 1938). This convention was never ratified.[38]
1938 League of Nations declaration for the "Protection of Civilian Populations Against Bombing From the Air in Case of War[39]
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
War crime, an act that amounts to a violation of the law of war
Notes
↑ Protected civilian in this instance means civilians who are enemy nationals or neutral citizens whose presence is outside the territory of a belligerent nation. Article 51.3 of Protocol I to the Geneva Conventions explains that "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".
Related Research Articles
The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, usually called the Geneva Protocol, is a treaty prohibiting the use of chemical and biological weapons in international armed conflicts. It was signed at Geneva on 17 June 1925 and entered into force on 8 February 1928. It was registered in League of Nations Treaty Series on 7 September 1929. The Geneva Protocol is a protocol to the Convention for the Supervision of the International Trade in Arms and Ammunition and in Implements of War signed on the same date, and followed the Hague Conventions of 1899 and 1907.
The Convention relative to the Protection of Civilian Persons in Time of War, more commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and came into force in October 1950. While the first three conventions dealt with combatants, the Fourth Geneva Convention was the first to deal with humanitarian protections for civilians in a war zone. There are currently 196 countries party to the 1949 Geneva Conventions, including this and the other three treaties.
A civilian casualty occurs when a civilian is killed or injured by non-civilians, mostly law enforcement officers, military personnel, rebel group forces, or terrorists. Under the law of war, it refers to civilians who perish or suffer wounds as a result of wartime acts. The term is generally applied to situations in which violence is committed in pursuit of political goals. During periods of armed conflict, there are structures, actors, and processes at a number of levels that affect the likelihood of violence against civilians.
A civilian is a person who is not a member of an armed force nor a person engaged in hostilities.
An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. The International Committee of the Red Cross points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements. While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. Article 4 of the Third Geneva Convention does describe categories under which a person may be entitled to prisoner of war status. There are other international treaties that deny lawful combatant status for mercenaries and children.
Combatant is the legal status of a person entitled to directly participate in hostilities during an armed conflict, and may be intentionally targeted by an adverse party for their participation in the armed conflict. Combatants are not afforded immunity from being directly targeted in situations of armed conflict and can be attacked regardless of the specific circumstances simply due to their status, so as to deprive their side of their support.
Non-combatant is a term of art in the law of war and international humanitarian law to refer to civilians who are not taking a direct part in hostilities; persons, such as combat medics and military chaplains, who are members of the belligerent armed forces but are protected because of their specific duties ; combatants who are placed hors de combat; and neutral persons, such as peacekeepers, who are not involved in fighting for one of the belligerents involved in a war. This particular status was first recognized under the Geneva Conventions with the First Geneva Convention of 1864.
The Hague Conventions of 1899 and 1907 are a series of international treaties and declarations negotiated at two international peace conferences at The Hague in the Netherlands. Along with the Geneva Conventions, the Hague Conventions were among the first formal statements of the laws of war and war crimes in the body of secular international law. A third conference was planned for 1914 and later rescheduled for 1915, but it did not take place because of the start of World War I.
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war. It is a branch of international law that seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities and by restricting and regulating the means and methods of warfare available to combatants.
Protocol I is a 1977 amendment protocol to the Geneva Conventions concerning the protection of civilian victims of international war, including "armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes". In practice, Additional Protocol I updated and reaffirmed the international laws of war stipulated in the Geneva Conventions of 1949 to accommodate developments of warfare since the Second World War (1937–1945).
War can heavily damage the environment, and warring countries often place operational requirements ahead of environmental concerns for the duration of the war. Some international law is designed to limit this environmental harm.
Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict.
Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and protected civilians. Combatant in this instance means persons entitled to directly participate in hostilities and thus are not afforded immunity from being directly targeted in situations of armed conflict. Protected civilian in this instance means civilians who are enemy nationals or neutral citizens outside of the territory of a belligerent power.
The Martens Clause is an early international law concept first introduced into the preamble of the 1899 Hague Convention II – Laws and Customs of War on Land. There are differing interpretations of its significance on modern international law, with some scholars simply treating the clause as a reminder international customary law still applies after a treaty is ratified while others take a more expansive approach where the clause provides that because international treaties cannot be all encompassing, states cannot use that as a justification for an action.
Air warfare must comply with laws and customs of war, including international humanitarian law by protecting the victims of the conflict and refraining from attacks on protected persons.
An explosive weapon is a weapon that uses an explosive to project blast and/or fragmentation from a point of detonation.
The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian treatment in war. The singular term Geneva Convention colloquially denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–1945), which updated the terms of the two 1929 treaties and added two new conventions. The Geneva Conventions extensively define the basic rights of wartime prisoners, civilians and military personnel; establish protections for the wounded and sick; and provide protections for the civilians in and around a war-zone.
The Protocol on Prohibitions or Restrictions on the use of Incendiary Weapons is a United Nations treaty that restricts the use of incendiary weapons. It is Protocol III to the 1980 Convention on Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious Or To Have Indiscriminate Effects. Concluded in 1981, it entered into force on 2 December 1983. As of January 2023, it had been ratified by 126 state parties.
The prohibition of torture is a peremptory norm in public international law—meaning that it is forbidden under all circumstances—as well as being forbidden by international treaties such as the United Nations Convention Against Torture.
In international humanitarian law and international criminal law, an indiscriminate attack is a military attack that fails to distinguish between legitimate military targets and protected persons. Indiscriminate attacks strike both legitimate military and protected objects alike, thus violating the principle of distinction between combatants and protected civilians. They differ from direct attacks against protected civilians and encompass cases in which the perpetrators are indifferent as to the nature of the target, cases in which the perpetrators use tactics or weapons that are inherently indiscriminate, and cases in which the attack is disproportionate, because it is likely to cause excessive protected civilian casualties and damages to protected objects.
↑ Aboul-Enein, H. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, p. 22, Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN1-4289-1039-5
↑ Adomnan of Iona. Life of St. Columba, Penguin Books, 1995.
↑ Dunant, Henry; Dunant, Henry; Dunant, Henry (1986). A Memory of Solferino (Repred.). Geneva: International Committee of the Red Cross. ISBN978-2-88145-006-8.
↑ Article 52 of Additional Protocol I to the Geneva Conventions provides a widely accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." (Source: Moreno-Ocampo 2006, page 5, footnote 11).
↑ Jefferson D. Reynolds. "Collateral Damage on the 21st century battlefield: Enemy exploitation of the law of armed conflict, and the struggle for a moral high ground".Air Force Law ReviewVolume 56, 2005(PDF) Page 57/58 "if international law is not enforced, persistent violations can conceivably be adopted as customary practice, permitting conduct that was once prohibited"
↑ "Rule 62. Improper Use of the Flags or Military Emblems, Insignia or Uniforms of the Adversary". ihl-databases.icrc.org. Retrieved 2023-08-30. However, their employment is forbidden during a combat, that is, the opening of fire whilst in the guise of the enemy. But there is no unanimity as to whether the uniform of the enemy may be worn and his flag displayed for the purpose of approach or withdrawal.
Witt, John Fabian. Lincoln's Code: The Laws of War in American History (Free Press; 2012) 498 pages; on the evolution and legacy of a code commissioned by President Lincoln in the Civil War
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