Jus In Bello
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The law of war is a component of
international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
that regulates the conditions for initiating war (''
jus ad bellum ' ( or ), literally "right to war" in Latin, refers to "the conditions under which States may resort to war or to the use of armed force in general". Jus ad bellum is one pillar of just war theory. Just war theory states that war should only be ...
'') 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. 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 A weapon, arm, or armament is any implement or device that is used to deter, threaten, inflict physical damage, harm, or kill. Weapons are used to increase the efficacy and efficiency of activities such as hunting, crime (e.g., murder), law ...
that may cause unnecessary 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.


Early sources and history

The first traces of a law of war come from the Babylonians. It is the
Code of Hammurabi The Code of Hammurabi is a Babylonian legal text composed during 1755–1750 BC. It is the longest, best-organized, and best-preserved legal text from the ancient Near East. It is written in the Old Babylonian dialect of Akkadian language, Akkadi ...
, 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 A caliphate ( ) is an institution or public office under the leadership of an Islamic steward with Khalifa, the title of caliph (; , ), a person considered a political–religious successor to the Islamic prophet Muhammad and a leader of ...
,
Abu Bakr Abd Allah ibn Abi Quhafa (23 August 634), better known by his ''Kunya (Arabic), kunya'' Abu Bakr, was a senior Sahaba, companion, the closest friend, and father-in-law of Muhammad. He served as the first caliph of the Rashidun Caliphate, ruli ...
, 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 Augustine of Hippo ( , ; ; 13 November 354 – 28 August 430) was a theologian and philosopher of Berber origin and the bishop of Hippo Regius in Numidia, Roman North Africa. His writings deeply influenced the development of Western philosop ...
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 Chivalry, or the chivalric language, is an informal and varying code of conduct that developed in Europe between 1170 and 1220. It is associated with the medieval Christianity, Christian institution of knighthood, with knights being members of ...
in
medieval Europe In the history of Europe, the Middle Ages or medieval period lasted approximately from the 5th to the late 15th centuries, similarly to the post-classical period of World history (field), global history. It began with the fall of the West ...
, the
Roman Catholic Church The Catholic Church (), also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.27 to 1.41 billion baptized Catholics Catholic Church by country, worldwid ...
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-combatant Non-combatant is a term of art in the law of war and international humanitarian law to refer to civilians who are not taking a direct part in hostilities. People such as combat medics and military chaplains, who are members of the belligerent arm ...
s 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 A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...
'' (or ''conventions'')—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 The Martens Clause (International Phonetic Alphabet, pronounced ) is an early international law concept first introduced into the preamble of the 1899 Hague Conventions of 1899 and 1907, Hague Convention II – Laws and Customs of War on Land. ...
. 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." Positive
international humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict or the laws of war, is the law that regulates the conduct of war (''wikt:jus in bello, jus in bello''). It is a branch of international law that seeks to limit ...
consists of
treaties A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...
(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, 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 Irregular military is any military component distinct from a country's regular armed forces, representing non-standard militant elements outside of conventional governmental backing. Irregular elements can consist of militias, private armie ...
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 Simón José Antonio de la Santísima Trinidad Bolívar y Palacios (24July 178317December 1830) was a Venezuelan statesman and military officer who led what are currently the countries of Colombia, Venezuela, Ecuador, Peru, Panama, and Bol ...
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 The Treaty of Guadalupe Hidalgo officially ended the Mexican–American War (1846–1848). It was signed on 2 February 1848 in the town of Villa de Guadalupe, Mexico City, Guadalupe Hidalgo. After the defeat of its army and the fall of the cap ...
, 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 The Lieber Code (General Orders No. 100, April 24, 1863) was the military law that governed the wartime conduct of the Union Army by defining and describing command responsibility for war crimes and crimes against humanity; and the military res ...
, promulgated by the Union during the
American Civil War The American Civil War (April 12, 1861May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States between the Union (American Civil War), Union ("the North") and the Confederate States of A ...
, 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 (i.e., written) 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 The International Criminal Tribunal for the former Yugoslavia (ICTY) was a body of the United Nations that was established to prosecute the war crimes in the Yugoslav Wars, war crimes that had been committed during the Yugoslav Wars and to tr ...
pointed out in 2001 that although there is no specific treaty ban on the use of
depleted uranium Depleted uranium (DU), also referred to in the past as Q-metal, depletalloy, or D-38, is uranium with a lower content of the fissile isotope Uranium-235, 235U than natural uranium. The less radioactive and non-fissile Uranium-238, 238U is the m ...
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. 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,
Charter of the United Nations The Charter of the United Nations is the foundational treaty of the United Nations (UN). It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the Secretariat, the G ...
,
Genocide Convention The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of its prohibition. It was ...
, United Nations Convention Against Torture,
Geneva Conventions upright=1.15, The original document in single pages, 1864 The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian t ...
including
Protocol I Protocol I (also Additional Protocol I and AP I) is a 1977 amendment Protocol (diplomacy), protocol to the Geneva Conventions concerning the protection of civilian casualty, civilian victims of international war, including "armed conflicts in ...
, Convention on Conventional Weapons of 1980,
Chemical Weapons Convention The Chemical Weapons Convention (CWC), officially the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, is an arms control treaty administered by the Organisation for ...
, and Convention on the Physical Protection of Nuclear Material. The lack of a formal final authority on
international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
and warfare further aggravate this problem. The lack of a final authority leaves states open to interpret the laws of war in their advantage, because they know there will not be severe punishment.


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 (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. To this end, laws of war are intended to mitigate the hardships of war by: * Protecting both
combatant Combatant is the legal status of a person entitled to directly participate in hostilities during an armed conflict, and may be intentionally targeted by an adverse party for their participation in the armed conflict. Combatants are not afforded i ...
s and protected
non-combatant Non-combatant is a term of art in the law of war and international humanitarian law to refer to civilians who are not taking a direct part in hostilities. People such as combat medics and military chaplains, who are members of the belligerent arm ...
s from unnecessary suffering. * Safeguarding certain fundamental
human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...
of protected persons who fall into the hands of the enemy, particularly
prisoners of war A prisoner of war (POW) is a person held captive by a belligerent power during or immediately after an armed conflict. The earliest recorded usage of the phrase "prisoner of war" dates back to 1610. Belligerents hold prisoners of war for a ...
, the wounded and sick, children, and protected civilians. * Facilitating the restoration of
peace Peace is a state of harmony in the absence of hostility and violence, and everything that discusses achieving human welfare through justice and peaceful conditions. In a societal sense, peace is commonly used to mean a lack of conflict (suc ...
. 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. Laws of war serve the conflicts that are currently taking place. As conflicts change over time so do the laws that govern them. New laws can therefore be created. This is recently seen in the " assassination policies" adopted during the " War on Terror".


Principles

'' Military necessity,'' along with '' distinction,'' '' proportionality,'' '' humanity'' (sometimes called unnecessary suffering), and ''
honor Honour ( Commonwealth English) or honor (American English; see spelling differences) is a quality of a person that is of both social teaching and personal ethos, that manifests itself as a code of conduct, and has various elements such as val ...
''(sometimes called chivalry) are the five most commonly cited principles of
international humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict or the laws of war, is the law that regulates the conduct of war (''wikt:jus in bello, jus in bello''). It is a branch of international law that seeks to limit ...
governing the legal use of force in an armed conflict. ''Military necessity'' is governed by several constraints: an attack or action must be intended to help in the defeat of the enemy; it must be an attack on a legitimate military objective,Article 52 of Additional
Protocol I Protocol I (also Additional Protocol I and AP I) is a 1977 amendment Protocol (diplomacy), protocol to the Geneva Conventions concerning the protection of civilian casualty, civilian victims of international war, including "armed conflicts in ...
to the
Geneva Conventions upright=1.15, The original document in single pages, 1864 The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian t ...
provides a widely accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." (Source: ).
and the harm caused to protected civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated. ''Distinction'' is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby
belligerent A belligerent is an individual, group, country, or other entity that acts in a hostile manner, such as engaging in combat. The term comes from the Latin ''bellum gerere'' ("to wage war"). Unlike the use of ''belligerent'' as an adjective meanin ...
s must distinguish between
combatant Combatant is the legal status of a person entitled to directly participate in hostilities during an armed conflict, and may be intentionally targeted by an adverse party for their participation in the armed conflict. Combatants are not afforded i ...
s and protected
civilian A civilian is a person who is not a member of an armed force. It is war crime, illegal under the law of armed conflict to target civilians with military attacks, along with numerous other considerations for civilians during times of war. If a civi ...
s.Protected civilian in this instance means civilians who are enemy nationals or neutral citizens whose presence is outside the territory of a
belligerent A belligerent is an individual, group, country, or other entity that acts in a hostile manner, such as engaging in combat. The term comes from the Latin ''bellum gerere'' ("to wage war"). Unlike the use of ''belligerent'' as an adjective meanin ...
nation. Article 51.3 of
Protocol I Protocol I (also Additional Protocol I and AP I) is a 1977 amendment Protocol (diplomacy), protocol to the Geneva Conventions concerning the protection of civilian casualty, civilian victims of international war, including "armed conflicts in ...
to the
Geneva Conventions upright=1.15, The original document in single pages, 1864 The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian t ...
explains that "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".
''Proportionality'' is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must make sure that the harm caused to protected civilians or civilian property is not excessive in relation to the concrete and direct military advantage expected by an attack on a legitimate military objective. However, as Robbie Sabel, Professor of international law at the Hebrew University, who has written on this topic, notes: “Anyone with experience in armed conflict knows that you want to hit the enemy’s forces harder than they hit you… if you are attacked with a rifle, there is no rule that stipulates that you can only shoot back with a rifle, but using a machine gun would not be fair, or that if you are attacked with only one tank you cannot shoot back with two.” ''Humanity'' is a principle based on the 1907 Hague Convention ''IV - The Laws and Customs of War on Land'' restrictions against using arms, projectiles, or materials calculated to cause suffering or injury manifestly disproportionate to the military advantage realized by the use of the weapon for legitimate military purposes. In some countries, weapons are reviewed prior to their use in combat to determine if they comply with the law of war and are not designed to cause unnecessary suffering when used in their intended manner. This principle also prohibits using an otherwise lawful weapon in a manner that causes unnecessary suffering. ''Honour'' is a principle that demands a certain amount of fairness and mutual respect between adversaries. Parties to a conflict must accept that their right to adopt means of injuring each other is not unlimited, they must refrain from taking advantage of the adversary's adherence to the law by falsely claiming the law's protections, and they must recognize that they are members of a common profession that fights not out of personal hostility but on behalf of their respective States.


Substantive examples

To fulfill the purposes noted above, the laws of war place substantive limits on the lawful exercise of a belligerent's power. Generally speaking, the laws require that belligerents refrain from employing violence that is not reasonably necessary for military purposes and that belligerents conduct hostilities with regard for the principles of humanity and
chivalry Chivalry, or the chivalric language, is an informal and varying code of conduct that developed in Europe between 1170 and 1220. It is associated with the medieval Christianity, Christian institution of knighthood, with knights being members of ...
. However, because the laws of war are based on consensus (as the nature of international law often relies on self-policing by individual states), the content and interpretation of such laws are extensive, contested, and ever-changing. The following are particular examples of some of the substance of the laws of war, as those laws are interpreted today.


Declaration of war

Section III of the Hague Convention of 1907 required hostilities to be preceded by a reasoned
declaration of war A declaration of war is a formal act by which one state announces existing or impending war activity against another. The declaration is a performative speech act (or the public signing of a document) by an authorized party of a national gov ...
or by an ultimatum with a conditional declaration of war. Some treaties, notably the
United Nations Charter The Charter of the United Nations is the foundational treaty of the United Nations (UN). It establishes the purposes, governing structure, and overall framework of the United Nations System, UN system, including its United Nations System#Six ...
(1945) Article 2, and other articles in the Charter, seek to curtail the right of member states to declare war; as does the older
Kellogg–Briand Pact The Kellogg–Briand Pact or Pact of Paris – officially the General Treaty for Renunciation of War as an Instrument of National Policy – is a 1928 international agreement on peace in which signatory states promised not to use war t ...
of 1928 for those nations who ratified it. These have led to fewer modern armed conflicts being preceded by formal declarations of war, undermining the objectives of the Hague Convention.


Lawful conduct of belligerent actors

Modern laws of war regarding conduct during war (''jus in bello''), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements. Article 4(a)(2) of the ''Geneva Convention relative to the Treatment of Prisoners of War'' recognizes Lawful Combatants by the following characteristics: * (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. Impersonating enemy combatants by wearing the enemy's uniform is possibly allowed, however the issue is unsettled. Fighting in that uniform is unlawful perfidy, as is the taking of hostages. Combatants also must be commanded by a responsible officer. That is, a commander can be held liable in a court of law for the improper actions of their subordinates. There is an exception to this if the war came on so suddenly that there was no time to organize a resistance, e.g. as a result of a foreign occupation.


People parachuting from an aircraft in distress

Modern laws of war, specifically within
Protocol I Protocol I (also Additional Protocol I and AP I) is a 1977 amendment Protocol (diplomacy), protocol to the Geneva Conventions concerning the protection of civilian casualty, civilian victims of international war, including "armed conflicts in ...
additional to the 1949 Geneva Conventions, prohibits attacking people parachuting from an aircraft in distress regardless of what territory they are over. Once they land in territory controlled by the enemy, they must be given an opportunity to surrender before being attacked unless it is apparent that they are engaging in a hostile act or attempting to escape. This prohibition does not apply to the dropping of
airborne troops Airborne forces are Ground warfare, ground combat units airlift, carried by aircraft and airdropped into battle zones, typically by parachute drop. Parachute-qualified infantry and support personnel serving in airborne units are also known as par ...
,
special forces Special forces or special operations forces (SOF) are military units trained to conduct special operations. NATO has defined special operations as "military activities conducted by specially designated, organized, selected, trained and equip ...
, commandos, spies, saboteurs, liaison officers, and intelligence agents. Thus, such personnel descending by parachutes are legitimate targets and, therefore, may be attacked, even if their aircraft is in distress.


Red Cross, Red Crescent, Magen David Adom, and the white flag

Modern laws of war, such as the 1949 Geneva Conventions, also include prohibitions on attacking doctors,
ambulance An ambulance is a medically-equipped vehicle used to transport patients to treatment facilities, such as hospitals. Typically, out-of-hospital medical care is provided to the patient during the transport. Ambulances are used to respond to ...
s or hospital ships displaying a
Red Cross The organized International Red Cross and Red Crescent Movement is a Humanitarianism, humanitarian movement with approximately 16million volunteering, volunteers, members, and staff worldwide. It was founded to protect human life and health, to ...
, a Red Crescent, Magen David Adom, Red Crystal, or other emblem related to the
International Red Cross and Red Crescent Movement The organized International Red Cross and Red Crescent Movement is a Humanitarianism, humanitarian movement with approximately 16million volunteering, volunteers, members, and staff worldwide. It was founded to protect human life and health, to ...
. 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, people protected by the Red Cross/Crescent/Star or white flag are expected to maintain neutrality, and may not engage in warlike acts. In fact, engaging in war activities under a protected symbol is itself a violation of the laws of war known as perfidy. Failure to follow these requirements can result in the loss of protected status and make the individual violating the requirements a lawful target.


Applicability to 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 A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. Militaries are typically authorized and maintained by a sovereign state, with their members identifiable by a ...
. 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 Combat (French language, French for ''fight'') is a purposeful violent Conflict (process), conflict between multiple combatants with the intent to harm the opposition. Combat may be armed (using weapons) or unarmed (Hand-to-hand combat, not usin ...
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 Camouflage is the use of any combination of materials, coloration, or illumination for concealment, either by making animals or objects hard to see, or by disguising them as something else. Examples include the leopard's spotted coat, the b ...
are guilty of violations of the laws of war and are responsible for damage to those that should be protected.


Mercenaries

The use of contracted combatants in warfare has been an especially tricky situation for the laws of war. Some scholars claim that private security contractors appear so similar to state forces that it is unclear if acts of war are taking place by private or public agents.
International law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
has yet to come to a consensus on this issue.


Remedies for violations

During conflict,
punishment Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon an individual or group, meted out by an authority—in contexts ranging from child discipline to criminal law—as a deterrent to a particular action or beh ...
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, any persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for
war crimes A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by combatants in action, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hos ...
. 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 The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. The Geneva Convention relative to the Treatment of Prisoners of War was first adopted in 1929, but significantl ...
, Article 129 and Article 130.) Combatants who break specific provisions of the laws of war are termed
unlawful combatants An unlawful combatant, illegal combatant, or unprivileged combatant/belligerent is a person who directly engages in armed conflict and is considered a terrorist and therefore is deemed not to be a lawful combatant protected by the Geneva Conv ...
. Unlawful combatants who have been captured may lose the status and protections that would otherwise be afforded to them as
prisoners of war A prisoner of war (POW) is a person held captive by a belligerent power during or immediately after an armed conflict. The earliest recorded usage of the phrase "prisoner of war" dates back to 1610. Belligerents hold prisoners of war for a ...
, 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 The Convention relative to the Protection of Civilian Persons in Time of War (), more commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1 ...
Article 5.)


International treaties on the laws of war

List of declarations, conventions, treaties, and judgments on the laws of war: * 1856 Paris Declaration Respecting Maritime Law abolished
privateering A privateer is a private person or vessel which engages in commerce raiding under a commission of war. Since Piracy, robbery under arms was a common aspect of seaborne trade, until the early 19th century all merchant ships carried arms. A sover ...
. * 1863
United States military The United States Armed Forces are the Military, military forces of the United States. U.S. United States Code, federal law names six armed forces: the United States Army, Army, United States Marine Corps, Marine Corps, United States Navy, Na ...
adopts the
Lieber Code The Lieber Code (General Orders No. 100, April 24, 1863) was the military law that governed the wartime conduct of the Union Army by defining and describing command responsibility for war crimes and crimes against humanity; and the military res ...
, a compilation of extant international norms on the treatment of civilians assembled by German scholar Franz Lieber. * 1864 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. * 1868 St. Petersburg Declaration, 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. * 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.Brussels Conference of 1874
ICRC cites D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp. 22–34.
* 1880 Manual of the Laws and Customs of War at
Oxford Oxford () is a City status in the United Kingdom, cathedral city and non-metropolitan district in Oxfordshire, England, of which it is the county town. The city is home to the University of Oxford, the List of oldest universities in continuou ...
. 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. * 1899 Hague Conventions consisted of three main sections and three additional declarations: ** I – Pacific Settlement of International Disputes ** II – Laws and Customs of War on Land ** III – Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 ** Declaration I – On the Launching of Projectiles and Explosives from Balloons ** Declaration II – On the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases ** Declaration III – On the Use of Bullets Which Expand or Flatten Easily in the Human Body * 1907 Hague Conventions had thirteen sections, of which twelve were ratified and entered into force, and two declarations: ** I – The Pacific Settlement of International Disputes ** II – The Limitation of Employment of Force for Recovery of Contract Debts ** III – The Opening of Hostilities ** IV – The Laws and Customs of War on Land ** V – The Rights and Duties of Neutral Powers and Persons in Case of War on Land ** VI – The Status of Enemy Merchant Ships at the Outbreak of Hostilities ** VII – The Conversion of Merchant Ships into War-ships ** VIII – The Laying of Automatic Submarine Contact Mines ** IX – Bombardment by Naval Forces in Time of War ** X – Adaptation to Maritime War of the Principles of the Geneva Convention ** XI – Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War ** XII – The Creation of an International Prize Court ot Ratified ** XIII – The Rights and Duties of Neutral Powers in Naval War ** Declaration I – extending Declaration II from the 1899 Conference to other types of aircraft ** Declaration II – on the obligatory arbitration * 1909 London Declaration concerning the Laws of Naval War largely reiterated existing law, although it showed greater regard to the rights of neutral entities. Never went into effect. * 1922 The
Washington Naval Treaty The Washington Naval Treaty, also known as the Five-Power Treaty, was signed during 1922 among the major Allies of World War I, Allies of World War I, which agreed to prevent an arms race by limiting Navy, naval construction. It was negotiated at ...
, also known as the ''Five-Power Treaty'' (6 February) * 1923 Hague Draft Rules of Aerial Warfare. Never adopted in a legally binding form. * 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 General Treaty for Renunciation of War as an Instrument of National Policy (also known as the ''Pact of Paris'' or ''Kellogg-Briand Pact'') * 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 Treaty for the Limitation and Reduction of Naval Armament (22 April) * 1935 Roerich Pact * 1936 Second London Naval Treaty (25 March) * 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. * 1938
League of Nations The League of Nations (LN or LoN; , SdN) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference (1919–1920), Paris Peace ...
declaration for the "Protection of Civilian Populations Against Bombing From the Air in Case of War * 1945
United Nations Charter The Charter of the United Nations is the foundational treaty of the United Nations (UN). It establishes the purposes, governing structure, and overall framework of the United Nations System, UN system, including its United Nations System#Six ...
(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 The United Nations (UN) is the Earth, global intergovernmental organization established by the signing of the Charter of the United Nations, UN Charter on 26 June 1945 with the stated purpose of maintaining international peace and internationa ...
Convention on the Prevention and Punishment of the Crime of Genocide The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an International Agreement, international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of ...
* 1949
Geneva Conventions upright=1.15, The original document in single pages, 1864 The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian t ...
** Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field ** Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea ** Geneva Convention III Relative to the Treatment of Prisoners of War ** 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 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (IACs) * 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 (NIACs) * 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 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 The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
advisory opinion An advisory opinion of a court or other government authority, such as an election commission, is a decision or opinion of the body but which is non-binding in law and does not have the effect of adjudicating a specific legal case, but which merely ...
on the Legality of the Threat or Use of Nuclear Weapons * 1997 Ottawa Treaty - Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction * 1998
Rome Statute of the International Criminal Court The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998Michael P. Scharf (August 1998)''Results of the R ...
(entered into force 1 July 2002) * 2000 Optional Protocol on the Involvement of Children in Armed Conflict (entered into force 12 February 2002) * 2005 Geneva Protocol III Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem * 2008 Convention on Cluster Munitions (entered into force 1 August 2010) * 2017 Treaty on the Prohibition of Nuclear Weapons (entered into force 22 January 2021)


See also

*
Arms control Arms control is a term for international restrictions upon the development, production, stockpiling, proliferation and usage of small arms, conventional weapons, and weapons of mass destruction. Historically, arms control may apply to melee wea ...
(includes list of treaties) *
Command responsibility In the practice of international law, command responsibility (also superior responsibility) is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer (military) and a superior officer (civil) are legally r ...
*
Crimes against humanity Crimes against humanity are certain serious crimes committed as part of a large-scale attack against civilians. Unlike war crimes, crimes against humanity can be committed during both peace and war and against a state's own nationals as well as ...
* Customary international humanitarian law * Debellatio *
International law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
*
Islamic military jurisprudence Islamic military jurisprudence refers to what has been accepted in Sharia (Islamic law) and Fiqh (Islamic jurisprudence) by ''Ulama'' (Islamic scholars) as the correct Islamic manner, expected to be obeyed by Muslims, in times of war. Some schola ...
* '' Journal of International Law of Peace and Armed Conflict'' * ''
Jus post bellum ''Jus post bellum'' ( ; Latin for "Justice after war") is a concept that deals with the morality of the termination phase of war, including the responsibility to rebuild. The idea has some historical pedigree as a concept in just war theory. In ...
'' * Law of occupation *
Law of the Sea Law of the sea (or ocean law) is a body of international law governing the rights and duties of State (polity), states in Ocean, maritime environments. It concerns matters such as navigational rights, sea mineral claims, and coastal waters juris ...
* Lawfare * '' Lex pacificatoria'' *
List of Articles of War A list is a set of discrete items of information collected and set forth in some format for utility, entertainment, or other purposes. A list may be memorialized in any number of ways, including existing only in the mind of the list-maker, bu ...
* List of weapons of mass destruction treaties *
Right of conquest The right of conquest was historically a right of ownership to land after immediate possession via force of arms. It was recognized as a principle of international law that gradually deteriorated in significance until its proscription in the af ...
* Rule of Law in Armed Conflicts Project (RULAC) * Self-defence in international law *
Targeted killing Targeted killing is a form of assassination carried out by governments Extrajudicial killing, outside a judicial procedure or a battlefield. Since the late 20th century, the legal status of targeted killing has become a subject of contention wit ...
*
Total war Total war is a type of warfare that includes any and all (including civilian-associated) resources and infrastructure as legitimate military targets, mobilises all of the resources of society to fight the war, and gives priority to warfare ov ...


Notes


References


Citations


General sources

* * * * * * * *


Further reading

* 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


External links


War & law index
—International Committee of the Red Cross website
International Law of War Association

The European Institute for International Law and International Relations
* Th
Rule of Law in Armed Conflicts Project

Law of War Manual
U.S. Department of Defense (2015, updated December 2016) {{DEFAULTSORT:Laws Of War War International humanitarian law