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The law of war is a legal term of art that refers to the aspect of public international law concerning acceptable justifications to engage in war (jus ad bellum) and the limits to acceptable wartime conduct (jus in bello or International humanitarian law).
Contents
- Purposes of the laws
- Principles of the laws of war
- Example substantive laws of war
- Declaration of war
- Lawful conduct of belligerent actors
- Persons parachuting from an aircraft in distress
- Red Cross Red Crescent Magen David Adom and the white flag
- Applicability to states and individuals
- Remedies for violations
- International treaties on the laws of war
- References
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.
The law of war is considered distinct from other bodies of law—such as the domestic law of a particular belligerent to a conflict—that may provide additional legal limits to the conduct or justification of war.
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:
To this end, laws of war are intended to mitigate the hardships of war by:
Principles of the laws of war
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.
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, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.
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 civilians.
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 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.
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. The following are particular examples of some of the substance of the laws of war, as those laws are interpreted today.
Declaration of war
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, 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.
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, such as wearing distinctive uniform or other distinctive signs visible at a distance, carrying weapons openly, and conducting operations in accordance with the laws and customs of war. Impersonating enemy combatants by wearing the enemy’s uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.
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 his or her 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.
Persons parachuting from an aircraft in distress
Modern laws of war, specifically within Protocol I additional to the 1949 Geneva Conventions, prohibits attacking persons 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
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, Magen David Adom, The Red Crystal, 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/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.
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.
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. 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. International law has yet to come to a consensus on this issue.
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.
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. (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.)
For example, in 1976, foreign soldiers fighting for the National Liberation Front of Angola (FNLA) were captured by the People's Movement for the Liberation of Angola (MPLA) during the Angolan Civil War in 1975. In the Luanda Trial, after "a regularly constituted court" found them guilty of being unlawful 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.
International treaties on the laws of war
List of declarations, conventions, treaties and judgments, and on the laws of war: