International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises “the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law.”[1] It defines 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.
The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitionson their conduct when dealing with irregular forces and non-signatories.
Two Historical Streams: The Law of Geneva and The Law of The Hague
Modern International Humanitarian Law is made up of two historical streams: the law of The Hague referred to in the past as the law of war proper and the law of Geneva or humanitarian law. The two streams take their names from a number of international conferences which drew up treaties relating to war and conflict, in particular the Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first which was drawn up in 1863. Both are branches of jus in bello, international law regarding acceptable practices while engaged in war and armed conflict.
The Law of The Hague
The Law of The Hague, or the Laws of War proper, “determines, the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm.” In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives.
Systematic attempts to limit the savagery of warfare only began to develop in the 19th century. Such concerns were able to build on the changing view of warfare by states influenced by the Age of Enlightenment. The purpose of warfare was to overcome the enemy state and this was obtainable by disabling the enemy combatants. Thus, “the distinction between combatants and civilians, the requirement that wounded and captured enemy combatants must be treated humanely, and that quarter must be given, some of the pillars of modern humanitarian law, all follow from this principle.”
The Law of Geneva
The massacre of civilians in the midst of armed conflict has a long and dark history. Selected examples include: Moses, speaking for the god of the Israelites, ordering the killing of all the Midianite women and male children; the massacres of the Kalingas by Ashoka in India, the massacre of some 100,000 Hindus by the Muslim troops of Timur (Tamerlane) or the Crusader massacres of Jews and Muslims in the Siege of Jerusalem (1099), to name a few examples drawn from a long list in history. Fritz Munch sums up historical military practice before 1800: “The essential points seem to be these: In battle and in towns taken by force, combatants and non-combatants were killed and property was destroyed or looted. In the 17th century, the Dutch jurist Hugo Grotius wrote “Wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents.”
Codification of Humanitarian Norms
However, it was not till the second half of the 19th century that a more systematic approach was initiated. In the United States, a German immigrant, Francis Lieber, drew up a code of conduct in 1863, which came to be called the Lieber Code in his honor, for the Northern army. The Lieber Code included the humane treatment of civilian populations in the areas of conflict, and also forbade the execution of POWs. At the same time, the involvement of a number of individuals such as Florence Nightingale during the Crimean War and Henry Dunant, a Genevese businessman who had worked with wounded soldiers at the Battle of Solferino, led to more systematic efforts to try and prevent the suffering of war victims. Dunant wrote a book, which he titled A Memory of Solferino, and in which he described the horrors he had witnessed. His reports were so shocking that they led to the founding of the International Committee of the Red Cross (ICRC) in 1863 and the convening of a conference in Geneva in 1864 which drew up the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.[18]
The Law of Geneva is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the ICRC.[19] This focus can be found in the Geneva Conventions.
Historical Convergence between IHL and the Laws of War
With the adoption of the 1977 Additional Protocols to the Geneva Conventions, the two strains of law began to converge, although provisions focusing on humanity could already be found in the Hague law (i.e. the protection of certain prisoners of war and civilians in occupied territories). However the 1977 Additional Protocols relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights provisions.
Basic rules of IHL
- Persons hors de combat (outside of combat) and those not taking part in hostilities shall be protected and treated humanely.
- It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
- The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the “Red Cross,” or of the “Red Crescent,” shall be required to be respected as the sign of protection.
- Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
- No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
- Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
- Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.
Examples
Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a Red Cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that, being considered the flag of truce, indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or the white flag are expected to maintain neutrality, and they may not engage in warlike acts themselves; in fact, engaging in war activities under a white flag or a red cross is itself a violation of the laws of war.
These examples of the laws of war address declaration of war, (the UN charter (1945) Art 2, and some other Arts in the charter, curtails 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 but used against Germany in the Nuremberg War Trials), 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.
Violations and punishment
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.
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.
