Laws of war Totally Explained

Everything about Laws Of War totally explained

There are 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.

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" 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's no specific treaty ban on the use of depleted uranium projectiles, there's a developing scientific debate and concern expressed regarding the impact of the use of such projectiles and it's 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. 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.

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:

Wars should be limited to achieving the political goals that started the war (for example, territorial control) and shouldn't include unnecessary destruction
Wars should be brought to an end as quickly as possible
People and property that don't 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.

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 belligerent’s power mentioned under Purposes and requires that belligerents refrain from employing any kind or degree of violence which isn't actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.

Binding 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

The law of war is derived from two principal sources:

Lawmaking Treaties (or Conventions), such as the Hague and Geneva Conventions.

Custom. Not all the law of war derives from or has been incorporated in such treaties, which can refer to the continuing importance of customary law. (see Martens Clause). Such customary international law is established by the general practice of nations together with their acceptance that such practice is required by law.

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 doesn't interfere with achieving legitimate military goals. For example, they're obliged to make every effort to avoid damaging people and property not involved in combat, but they're 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 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). 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, shan't be deprived of the rights of fair and regular trial", because they're 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 isn't bound by the Convention are not protected by it".), whether they're spies or terrorists. Also, citizens and soldiers of nations which have not signed and don't abide by the Third and Fourth Geneva Conventions are not protected by them. (Article 2, of both Conventions: "[TheHigh Contracting Parties] shall furthermore be bound by the Convention in relation to [aPower which isn't 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. 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:

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

1874 Project of an International Declaration concerning the Laws and Customs of War (Brussels Declaration). Signed in Brussels 27 August. This agreement never entered into force, but formed part of the basis for the codification of the laws of war at the 1899 Hague Peace Conference.

1880 Manual of the Laws and Customs of War at Oxford. At its session in Geneva in 1874 the Institute of International Law appointed a committee to study the Brussels Declaration of the same year and to submit to the Institute its opinion and supplementary proposals on the subject. The work of the Institute led to the adoption of the Manual in 1880 and it went on to form part of the basis for the codification of the laws of war at the 1899 Hague Peace Conference.

1925 Geneva protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare

1927-1930 Greco-German arbitration tribunal

1928 Kellogg-Briand Pact (also known as the Pact of Paris)

1928 League of Nations declaration for the "Protection of Civilian Populations Against Bombing From the Air in Case of War"

1928 Amsterdam Draft Convention for the Protection of Civilian Populations Against New Engines of War.

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

1947 Nuremberg Principles. formulated under UN General Assembly Resolution 177 21 November 1947

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

1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea.

1994 ICRC/UNGA Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conflict

1994 UN Convention on the Safety of United Nations and Associated Personnel

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 CourtFurther Information

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