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Law of war

The law of war is a component of international law that regulates the conditions for initiating war (jus ad bellum) and the conduct of hostilities (jus in bello). Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of law.

"Laws of War" redirects here. For the Arma 3 expansion, see Arma 3 § Laws of War.

Among other issues, modern laws of war address the 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.[1][2]


The law of war is considered distinct from other bodies of law—such as the domestic law of a particular belligerent to a conflict—which may provide additional legal limits to the conduct or justification of war.

Lawmaking (or conventions)—see § International treaties on the laws of war below.

treaties

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 as articulated by the . Such customary international law is established by the general practice of nations together with their acceptance that such practice is required by law.

Martens Clause

General Principles. "Certain fundamental principles provide basic guidance. For instance, the principles of distinction, proportionality, and necessity, all of which are part of customary international law, always apply to the use of armed force."

[1]

The modern law of war is made up from three principal sources:[1]


Positive international humanitarian law consists of treaties (international agreements) that directly affect the laws of war by binding consenting nations and achieving widespread consent.


The opposite of positive laws of war is customary laws of war,[1] 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.


The Treaty of Armistice and Regularization of War signed on November 25 and 26, 1820 between the president of the Republic of Colombia, Simón Bolívar and the Chief of the Military Forces of the Spanish Kingdom, Pablo Morillo, is the precursor of the International Humanitarian Law.[7] The Treaty of Guadalupe Hidalgo, signed and ratified by the United States and Mexico in 1848, articulates rules for any future wars, including protection of civilians and treatment of prisoners of war.[8] The Lieber Code, promulgated by the Union during the American Civil War, was critical in the development of the laws of land warfare.[9]


Historian Geoffrey Best called the period from 1856 to 1909 the law of war's "epoch of highest repute."[10] The defining aspect of this period was the establishment, by states, of a positive legal or legislative foundation (i.e., written) superseding a regime based primarily on religion, chivalry, and customs.[11] It is during this "modern" era that the international conference became the forum for debate and agreement between states and the "multilateral treaty" served as the positive mechanism for codification.


The Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity"[12] 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 effect of the use of such projectiles and it is possible that, in future, there may be a consensus view in international legal circles that use of such projectiles violates general principles of the law applicable to use of weapons in armed conflict.[13] This is because in the future it may be the consensus view that depleted uranium projectiles breach 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.[14]

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.

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 humanitarian law by warring parties through the ages, it was believed by many, especially after the eighteenth century, that codifying laws of war would be beneficial.[15]


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:


The idea that there is a right to war concerns, on the one hand, the jus ad bellum, the right to make war or to enter war, assuming a motive such as to defend oneself from a threat or danger, presupposes a declaration of war that warns the adversary: war is a loyal act, and on the other hand, jus in bello, the law of war, the way of making war, which involves behaving as soldiers invested with a mission for which all violence is not allowed. In any case, the very idea of a right to war is based on an idea of war that can be defined as an armed conflict, limited in space, limited in time, and by its objectives. War begins with a declaration (of war), ends with a treaty (of peace) or surrender agreement, an act of sharing, etc.[16]

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly; and

(d) That of conducting their operations in accordance with the laws and customs of war.

[24]

Applicability to states and individuals[edit]

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.[26]

Remedies for violations[edit]

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 ends, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes. Also, nations that signed the Geneva Conventions are required to search for, try and punish, anyone who had 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.)

1856 abolished privateering.

Paris Declaration Respecting Maritime Law

1863 adopts the Lieber Code, a compilation of extant international norms on the treatment of civilians assembled by German scholar Franz Lieber.

United States military

1864 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.[31]

Geneva Convention

1868 , officially the Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, renounced the usage of explosive projectiles with a mass of less than 400 grams.

St. Petersburg Declaration

1874 Project of an International Declaration concerning the Laws and Customs of War ().[32] 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.[33][34]

Brussels Declaration

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.[34]

1880 Manual of the Laws and Customs of War

1909 largely reiterated existing law, although it showed greater regard to the rights of neutral entities. Never went into effect.

London Declaration concerning the Laws of Naval War

1922 The , also known as the Five-Power Treaty (6 February)

Washington Naval Treaty

1923 Hague Draft Rules of Aerial Warfare. Never adopted in a legally binding form.

[35]

1925 for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.[36]

Geneva protocol

1927–1930

Greco-German arbitration tribunal

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

General Treaty for Renunciation of War as an Instrument of National Policy

1929 .

Geneva Convention, Relative to the treatment of prisoners of war

1929 ,

Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armies in the Field

1930 (22 April)

Treaty for the Limitation and Reduction of Naval Armament

1935

Roerich Pact

1936 (25 March)

Second London Naval Treaty

1938 Amsterdam Draft Convention for the Protection of Civilian Populations Against New Engines of War. (Officially the Draft Convention for the Protection of Civilian Populations Against New Engines of War. Amsterdam, 1938). This convention was never ratified.

[37]

1938 declaration for the "Protection of Civilian Populations Against Bombing From the Air in Case of War[38]

League of Nations

1945 (entered into force on October 24, 1945)

United Nations Charter

1946 Judgment of the International

Military Tribunal at Nuremberg

1947 formulated under UN General Assembly Resolution 177, 21 November 1947

Nuremberg Principles

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

1974 United Nations

Declaration on the Protection of Women and Children in Emergency and Armed Conflict

1977 United Nations

Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques

1977 Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts

Geneva Protocol I

1977 Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts

Geneva Protocol II

1978 Red Cross Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts

Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices

1994 on International Law Applicable to Armed Conflicts at Sea[40]

San Remo Manual

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

[41]

1994 UN .[42]

Convention on the Safety of United Nations and Associated Personnel

1996 The advisory opinion on the Legality of the Threat or Use of Nuclear Weapons

International Court of Justice

1997

Ottawa Treaty - Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction

1998 (entered into force 1 July 2002)

Rome Statute of the International Criminal Court

2000 (entered into force 12 February 2002)

Optional Protocol on the Involvement of Children in Armed Conflict

2005 Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem

Geneva Protocol III

2008 (entered into force 1 August 2010)

Convention on Cluster Munitions

2017 (entered into force 22 January 2021)

Treaty on the Prohibition of Nuclear Weapons

List of declarations, conventions, treaties, and judgments on the laws of war:[28][29][30]

Greenberg, Joel (2011), , www.crimesofwar.org, archived from the original on 2013-07-06, retrieved 4 July 2013

"Illegal Targeting of Civilians"

Johnson, James Turner (198), Just War Tradition and the Restraint of War: A Moral and Historical Inquiry, New Jersey: Princeton University Press

Lamb, A. (2013), Ethics and the Laws of War: The moral justification of legal norms, Routledge

(9 February 2006), OTP letter to senders re Iraq (PDF), International Criminal Court

Moreno-Ocampo, Luis

Moseley, Alex (2009), "Just War Theory", The Internet Encyclopedia of Philosophy

Roberts, Adam; Guelff, Richard, eds. (2000), Documents on the Laws of War (Third ed.), Oxford University press,  978-0-19-876390-1

ISBN

Texts and commentaries of 1949 Geneva Conventions & Additional Protocols

Walzer, Michael (1997), (2nd ed.), New York: Basic Books, archived from the original on 2011-09-10

Just and Unjust Wars: A Moral Argument with Historical Illustrations

Witt, John Fabian. Lincoln's Code: The Laws of War in American History (Free Press; 2012) 498 pages; on the evolution and legacy of a code commissioned by President Lincoln in the Civil War

—International Committee of the Red Cross website

War & law index

International Law of War Association

The European Institute for International Law and International Relations

The

Rule of Law in Armed Conflicts Project

U.S. Department of Defense (2015, updated December 2016)

Law of War Manual