Laws of war

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The two parts of the laws of war (or Law of Armed Conflict (LOAC)): 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.

These laws are theoretically applicable only to nations which approve and consent to bind to them, usually in the form of international organizations or diplomacy, but in practice all nations are expected to follow the laws of war. Geopolitical conditions of a particular era often dictate which laws are enforced, and by whom.

Contents 1 Sources of the laws of war 2 Purposes of the laws 3 Conduct of warfare 4 Declaration of war 5 Violations and applicability 6 Prohibitory effects 7 Remedies for violations 8 International treaties on the laws of war 9 See also 10 References 11 Further reading 12 Footnotes

[edit] Sources of the laws of war

Positive international humanitarian law consists of international agreements which directly affect 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 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"^[1] 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 impact 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.^[2] 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.^[3]

[edit] 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. 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; and
• 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] 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-WW2 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.

[edit] 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.

[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. 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 who 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.

[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:^[4][5][6]

• 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 Grammes Weight
• 1899 Hague Convention 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 Convention 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^[7]
• 1925 Geneva protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare^[8]
• 1927-1930 Greco-German arbitration tribunal
• 1928 Kellogg-Briand Pact (also known as the Pact of Paris)
• 1938 League of Nations declaration for the "Protection of Civilian Populations Against Bombing From the Air in Case of War"^[9]
• 1938 Amsterdam Draft Convention for the Protection of Civilian Populations Against New Engines of War.^[10]
• 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)
• 1945 United Nations Charter (entered into force on October 24, 1945)
• 1946 Judgment of the International Military Tribunal at Nuremberg
• 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^[11]
• 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea.^[12]
• 1994 ICRC/UNGA Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conflict^[13]
• 1994 UN Convention on the Safety of United Nations and Associated Personnel^[14]
• 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

[edit] See also

• Command responsibility
• Law of occupation
• Just war
• Total war
• Debellatio
• Law of land warfare
• Lieber Code
• International law
• International Humanitarian Law
• Right of conquest
• Rules of war in Islam

[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

• UN Charter
• A Brief History Of The Laws Of War
• Crimes, Trials and Laws
• 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, 18th August to 9th September, 1947
• 1976: Death sentence for mercenaries(source BBC)
• When the Law of War Becomes Over-lawyered, JURIST
• For the Sake of Warriors: Accepting the Limits of the Law of War, JURIST
• Gene Dannen International Law on the Bombing of Civilians

[edit] Footnotes

1. ^ Judgement : The Law Relating to War Crimes and Crimes Against Humanity contained in the Avalon Project archive at Yale Law School.
2. ^ 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
3. ^ 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)
4. ^ Roberts and Guelff References
5. ^ ICRCTreaties & Documents by date
6. ^ 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.
7. '^ The Hague Rules of Air Warfare, 1922-12 to 1923-02, this convention was never adopted (backup site)
8. ^ Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925.
9. ^ Protection of Civilian Populations Against Bombing From the Air in Case of War, Unanimous resolution of the League of Nations Assembly, 30 September 1938
10. ^ Draft Convention for the Protection of Civilian Populations Against New Engines of War. Amsterdam, 1938
11. ^ Explosive remnants of war and international humanitarian law on the website of the International Committee of the Red Cross
12. ^ 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
13. ^ 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
14. ^ Convention on the Safety of United Nations and Associated Personnel

International criminal law
Sources of law:
Charter of the IMT - Command responsibility - Crime against international law - Crime against humanity Crime against peace - Crime of apartheid - Crime of genocide - Customary law - Laws of war - Nuremberg Principles Peremptory norm - Rome Statute - Universal jurisdiction - War crime - War of aggression
Courts:
War responsibility trials in Finland - International Military Tribunal for Europe International Military Tribunal for the Far East - Khabarovsk War Crime Trials Tribunal for the former Yugoslavia - Tribunal for Rwanda - Court for Sierra Leone International Criminal Court
History:
List of war crimes - List of war criminals This box: view • talk • edit