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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.[1]

Contents

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:

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 forcing an axe against them: for thou mayest eat of them, and thou shalt not cut them down (for the tree of the field is man's life) to employ them in the siege: Only the trees which thou knowest that they be not trees for meat, thou shalt destroy and cut them down; and thou shalt build bulwarks against the city that maketh war with thee, until it be subdued.[2]

Similarly, Deuteronomy 21:10-15 requires that female captives be treated in a manner that in the ancient world was unusually humane.[3] 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.[4]

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,[5] 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:[6]

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.[7]

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:[1]

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,[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.

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.

In addition, the Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity"[10] 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 may 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.[11] 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.[12]

Purposes of the laws

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:

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.[13] 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,formed the main basis for the charges against Germany after the war at Nuremberg .[14]

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, 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 intentionally 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.[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.

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,[15] one researcher who analyzed the evolution of these laws[16] 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."[17] 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:[18]

  • 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

see also List of international declarations

List of declarations, conventions, treaties and judgements and on the laws of war:[19][20][21]

See also

References

External links

Further reading

Footnotes

  1. ^ a b c 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
  2. ^ http://etext.virginia.edu/etcbin/toccer-new2?id=KjvDeut.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=20&division=div1
  3. ^ http://etext.virginia.edu/etcbin/toccer-new2?id=KjvDeut.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=21&division=div1
  4. ^ 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, ISBN 1428910395
  5. ^ Kelsay, J. (March 2003), "Al-Shaybani and the Islamic Law of War", Journal of Military Ethics (Routledge) 2 (1): 63–75 
  6. ^ Judge Weeramantry, Christopher G. (1997), Justice Without Frontiers, Brill Publishers, pp. 136, ISBN 9041102418 
  7. ^ Judge Weeramantry, Christopher G. (1997), Justice Without Frontiers, Brill Publishers, pp. 136–7, ISBN 9041102418 
  8. ^ GEOFFREY BEST, HUMANITY IN WARFARE 129 (1980).
  9. ^ 2 L. OPPENHEIM, INTERNATIONAL LAW §§ 67-69 (H. Lauterpacht ed., 7th ed. 1952).
  10. ^ Judgement : The Law Relating to War Crimes and Crimes Against Humanity contained in the Avalon Project archive at Yale Law School.
  11. ^ The Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia: Use of Depleted Uranium Projectiles
  12. ^ E/CN.4/Sub.2/2002/38 Human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering (backup)
  13. ^ 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 Review Volume 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"
  14. ^ http://www.jewishvirtuallibrary.org/jsource/Holocaust/NurappC.html
  15. ^ See e.g., Grant R. Doty, "THE UNITED STATES AND THE DEVELOPMENT OF THE LAWS OF LAND WARFARE" in 156 Military Law Review 224 (1998) - https://www.jagcnet.army.mil/JAGCNETINTERNET/HOMEPAGES/AC/MILITARYLAWREVIEW.NSF/20a66345129fe3d885256e5b00571830/6d99151e5dc7d05085256e5b00577b0d/$FILE/ATTR2A48/Volume156Doty.pdf.
  16. ^ See "The Laws of Land Warfare Genealogy Project" - http://www.geocities.com/gr_doty/
  17. ^ Grant R. Doty, "THE UNITED STATES AND THE DEVELOPMENT OF THE LAWS OF LAND WARFARE" in 156 Military Law Review 224 at 253(1998).
  18. ^ FM 3-07.1, Security Force Assistance. Appendix B, table B-1. May 2009. Compare with principles of war
  19. ^ Roberts and Guelff References
  20. ^ ICRCTreaties & Documents by date
  21. ^ Joan T. Phillips. List of documents and web links relating to the law of armed conflict in air and space operations, May 2006. Bibliographer, Muir S. Fairchild Research Information Center Maxwell (United States) Air Force Base, Alabama.
  22. ^ Project of an International Declaration concerning the Laws and Customs of War. Brussels, 27 August 1874
  23. ^ Brussels Conference of 1874 - International Declaration Concerning Laws and Customs of War Stockholm International Peace Research Institute Project on Chemical and Biological Warfare
  24. ^ a b Brussels Conference of 1874 ICRC cites D.Schindler and J.Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp.22-34.
  25. '^ The Hague Rules of Air Warfare, 1922-12 to 1923-02, this convention was never adopted (backup site)
  26. ^ Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925.
  27. ^ Draft Convention for the Protection of Civilian Populations Against New Engines of War. Amsterdam. The meetings of forum were from 29.08.1938 until 02.09.1938 in Amsterdam.
  28. ^ Protection of Civilian Populations Against Bombing From the Air in Case of War, Unanimous resolution of the League of Nations Assembly, 30 September 1938
  29. ^ Explosive remnants of war and international humanitarian law on the website of the International Committee of the Red Cross
  30. ^ by Louise Doswald-Beck San Remo Manual on International Law Applicable to Armed Conflict at Sea 31 December 1995 International Review of the Red Cross no 309, p.583-594
  31. ^ Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict 30 April 1996 International Review of the Red Cross no 311, p.230-237
  32. ^ Convention on the Safety of United Nations and Associated Personnel

Simple English

The Laws of war are some simple rules which most people accept about fighting. Many people think that because there is fighting, there are no rules. But laws of war have been made so that wars do not get worse than they need to be.

  1. Anything marked as a hospital, an ambulance, a doctor, or a first aid person are not to be shot at. Those places, vehicles, and people should not have weapons.
  2. Anyone fighting in the war has to wear a uniform. They can only wear the uniform of their side. Also they have to carry their weapons out in the open where it can be seen.
  3. Anyone carrying or waving a plain white flag or piece of cloth must not be attacked. That person should also not attack anyone. They may want to surrender, or just talk about ways to solve the problem without more fighting.
  4. Any enemy soldiers captured must be treated fairly.
  5. Religious buildings such as churchs, mosques, and temples should never be a target of fighting.

Where the laws come from

These laws come from various treaties. Some of these treaties are:

  • The Paris Declaration Respecting Maritime Law of 1856. It abolished privateering
  • The First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 1864
  • The St. Petersburg Declaration of 1868. It bans ammunition of less that 400 grammes weight. It also bans ammunition with Fulminates in them, or with inflammable substances. Through this convention, it is no longer allowed to use ammunition that falls apart into fragments, that burns, or explodes for small arms. Such ammunition can still be used in autocannon or artillery though.
  • The Hague Conventions of 1898 and 1907
  • Various other Geneva Conventions
  • The Charter of the 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. This bans certain types of weapons (like some landmines, weapons with fragmenting ammunition, incendiary devices and blinding laser weapons)








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