Law of war
The law of war is the part of international law that regulates the conditions for initiating war and the conduct of hostilities. Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of law. Among other issues, the modern laws of war address the declarations of war; acceptance of surrender and the treatment of prisoners of war; the principles of distinction, as well as military necessity and proportionality; and the prohibition of certain weapons that cause unnecessary or excessive 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—which may provide additional legal limits to the conduct or justification of war. The term law of war, or jus in bello, overlaps to some degree with opinio juris, but refers to a very specific body of international law composed of customary and treaty-based law.
Early sources and history
States have long employed law to limit their conflicts. The first traces of a law of war come from the Babylonians. It is the Code of Hammurabi, king of Babylon, which in 1750 B.C., explains its laws imposing a code of conduct in the event of war:An example from the Book of Deuteronomy 20:19–20 limits the amount of environmental damage, allowing only the cutting down of non-fruitful trees for use in the siege operation, while fruitful trees should be preserved for use as a food source. Similarly, Deuteronomy 21:10–14 requires that female captives who were forced to marry the victors of a war, then not desired anymore, be let go wherever they want, and requires them not to be treated as slaves nor be sold for money.
In the early 7th century, the first Sunni Muslim caliph, Abu Bakr, whilst instructing his Muslim army, laid down rules against the mutilation of corpses, killing children, women, and the elderly. He also laid down rules against environmental harm to trees and slaying of the enemy's animals:
In the history of the early Christian church, many Christian writers considered that Christians could not be soldiers or fight wars. Augustine of Hippo contradicted this and wrote about 'just war' doctrine, in which he explained the circumstances when war could or could not be morally justified.
In 697, Adomnan of Iona gathered Kings and church leaders from around Ireland and Scotland to Birr, where he gave them the 'Law of the Innocents', which banned killing women and children in war, and the destruction of churches.
Apart from chivalry in medieval Europe, the Roman Catholic Church also began promulgating 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.
Modern sources
The modern law of war is made up from three principal sources:- Lawmaking treaties —see [|§ International treaties on the laws of war] below.
- 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 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.
- 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."
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.
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. 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. The Lieber Code, promulgated by the Union during the American Civil War, was critical in the development of the laws of land warfare.
Historian Geoffrey Best called the period from 1856 to 1909 the law of war's "epoch of highest repute." The defining aspect of this period was the establishment, by states, of a positive legal or legislative foundation superseding a regime based primarily on religion, chivalry, and customs. 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" 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.
Development
Some of the laws of war relate to the rightful manner of war, what is termed the jus in bello. Other laws of war prescribe when nations could or should go to war, what international lawyers call jus ad bellum. In part because of Grotius and the development of the modern law of nations, for almost three centuries after the conclusion of the Thirty Years War Europe entered a period of what may be termed “the golden age of the jus in bello, of frame positive constraints on the conduct of war." Generally, international conflicts in Europe were set piece battles waged by professional armies fighting for limited and fixed political objectives. Civilians and civilian populations were usually left more or less unharmed by military forces.As the 19th century unfolded, the effort to codify and develop the law of war and to control the use of arms became even more earnest. There were profound hopes that war might eventually be abolished since civilization had become so advanced. Such hopes were linked to the idea that international adjudication and arbitration could come to replace war as a means of international dispute settlement. in 1864, 12 countries signed the Geneva Red Cross Convention, protecting hospital and ambulance crews.
Between 1899 and 1907, many various and detailed Hague Conventions were issued that were a produce of two Hague Peace Conferences. The first was called in 1898 by Tsar Nicholas II of Russia, who declared:
hat the present moment would be very favorable for seeking, by means of international discussion, the most effectual means of insuring to all peoples the benefits of a real and durable peace, and, above all, of putting an end to the progressive development of the present armaments.
Purposes
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. Classifications of what kind of conflict is taking place is also important. Depending on how a conflict is classified certain actors may or may not use force against another power. This can lead to tactical classification of a conflict so that one actor has the sole right of force. Sometimes a new body of law is even created to do so.Some of the central principles underlying laws of war are:
- Wars should be limited to achieving the political goals that started the war 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.
- Protecting both combatants and protected non-combatants from unnecessary suffering.
- Safeguarding certain fundamental human rights of protected persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, children, and protected civilians.
- Facilitating the restoration of peace.