Laws of war

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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:


Contents

 

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. In medieval Europe the Roman Catholic Church promulgated 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, including:

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"[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, whereby 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]

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:

To this end, laws of war are intended to mitigate the evils of war by:

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.

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. This article, derived from public domain government sources, generally describes the law as internationally understood. The conduct of armed hostilities on land is regulated by the law of land warfare which is both written and unwritten.

Prohibitory effect

The law of war places limits on the exercise of a belligerentís 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.

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.

Sources of the law

See also: Sources of international law

The law of war is derived from two principal sources:

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.

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


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 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.

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)

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. 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.

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]

See also

References

Further reading

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. Project of an International Declaration concerning the Laws and Customs of War. Brussels, 27 August 1874
  8. Brussels Conference of 1874 - International Declaration Concerning Laws and Customs of War Stockholm International Peace Research Institute Project on Chemical and Biological Warfare
  9. 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.
  10. The Hague Rules of Air Warfare, 1922-12 to 1923-02, this convention was never adopted (backup site)
  11. Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925.
  12. Protection of Civilian Populations Against Bombing From the Air in Case of War, Unanimous resolution of the League of Nations Assembly, 30 September 1938
  13. Draft Convention for the Protection of Civilian Populations Against New Engines of War. Amsterdam, 1938
  14. Explosive remnants of war and international humanitarian law on the website of the International Committee of the Red Cross
  15. 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
  16. 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
  17. Convention on the Safety of United Nations and Associated Personnel

 

 

 

 

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