Laws of war
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The laws of war (Jus in bello) define the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.
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Sources of the laws of war
The laws of war, foremost the United Nations Charter, the Geneva conventions and the Hague conventions bind consenting nations and have achieved practically universal consent. There are also customary rules 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"Template:Ref 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 or not the party was a signature to the specific treaty.
Law concerning acceptable practices while engaged in war, like the Geneva Conventions, is called jus in bello. Law concerning allowable justifications for armed force is called jus ad bellum.
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:
- That wars should be limited to achieving the political goals that started the war (e.g., territorial control) and should not include unnecessary destruction
- That wars should be brought to an end as quickly as possible
- That people and property that do not contribute to the war effort 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.
Conduct of warfare
Among other issues, the laws of war address declaration of war, acceptance of surrender and the treatment of prisoners of war; the avoidance of atrocities; the prohibition on deliberately attacking civilians; and the prohibition of certain inhumane weapons. 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 easily identifiable badge and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform and fighting in that uniform, is forbidden, as is the taking of hostages.
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 and toothless Kellogg-Briand Pact of 1928 for those nations who ratified it. The Kellogg-Briand Pact was used against Germany for waging an aggressive war at the Nuremberg War Trials.
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.
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. 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.
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 are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they 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. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.
After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.
See also
References
- Documents on the Laws of War (http://www.oup.com/us/catalog/general/subject/Law/InternationalLaw/?view=usa&sf=toc&ci=0198763905), (Third Edition) Ed. by Adam Roberts and Richard Guelff, Oxford University press, ISBN 0198763905
External links
- UN Charter (http://www.un.org/aboutun/charter/)
- A Brief History Of The Laws Of War (http://www.globalissuesgroup.com/geneva/history.html)
- Crimes, Trials and Laws (http://www.ess.uwe.ac.uk/genocide/trials.htm)
- Trial of Otto Skorzeny and Others, General Military Government Court of the U.S. Zone of Germany, 18th August to 9th September, 1947 (http://www.ess.uwe.ac.uk/WCC/skorzeny.htm)
- 1976: Death sentence for mercenaries (http://news.bbc.co.uk/onthisday/hi/dates/stories/june/28/newsid_2520000/2520575.stm)(source BBC)
Notes
- Template:Note Judgement : The Law Relating to War Crimes and Crimes Against Humanity (http://www.yale.edu/lawweb/avalon/imt/proc/judlawre.htm) containd in the Avalon Project archive at Yale Law School.de:Kriegsrecht