Keith Mack
International law, or the law of war, is a component of international law that regulates the conditions for initiating war and the conduct of hostilities. The law of war defines sovereignty and nationhood, states and territories, occupation, and other critical terms of law. The modern law of war is made up of three principal sources: lawmaking treaties (or conventions), customary international law, and multilateral treaties. The Geneva Conventions, which are central to IHL, have been ratified by all 196 states, making IHL a universal body of law. The conventions crystallised non-treaty international law in the aftermath of World War II, providing a summary of the law with which modern professional militaries need to be familiar. The Second World War was the first armed conflict in which air power made the bombing of civilians possible at a massive scale. Since then, international law has adapted to modern warfare by addressing the intentional targeting of civilians, the use of certain weapons, and the treatment of prisoners of war. While international law has been effective in regulating warfare, the gap between agreed-upon rules and reality remains a challenge, with violations occurring in plain sight.
| Characteristics | Values |
|---|---|
| Purpose | Preventing the catastrophic human cost of war |
| Scope | Initiating war (jus ad bellum) and conduct of hostilities (jus in bello) |
| Rules | Prohibition of torture, ill-treatment, and certain weapons; protection of civilians, medics, aid workers, wounded, sick, prisoners of war, etc.; treatment of detainees; military necessity; distinction and proportionality |
| Sources | Treaties (e.g. Geneva Conventions, United Nations Charter), customary international law, multilateral treaties |
| Compliance | All parties in a conflict must respect IHL, including governmental forces and non-state armed groups |
| Challenges | Violations occur despite agreed-upon rules, requiring stronger action from states, international institutions, and non-state armed groups |
| Historical Context | International law has both restrained and normalized the use of force in different historical periods |
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What You'll Learn
International humanitarian law (IHL)
The Geneva Conventions, first adopted in 1949, are central to IHL and have been ratified by all 196 states, making IHL a universal body of law. The Conventions codified earlier treaties and crystallised non-treaty international law in the aftermath of World War II. The Additional Protocols, adopted in 1977, further regulate international and non-international armed conflicts and explicitly prohibit the intentional targeting of civilians. The First Additional Protocol also includes prohibitions on attacking doctors, ambulances, or hospital ships displaying emblems related to the International Red Cross and Red Crescent Movement.
IHL sets an outer limit of acceptable behaviour in warfare, aiming to prevent the catastrophic human cost of war. It complements international human rights law (IHRL) in creating a comprehensive body of rules for the prevention and punishment of torture and other forms of ill-treatment, which are prohibited everywhere and at all times.
While IHL provides a vast set of rules for various aspects of warfare, the gap between agreed-upon rules and their enforcement on the ground remains a challenge. Violations occur in plain sight, and states, international institutions, and non-state armed groups must do more to stop impunity. Additionally, while international law seeks to restrain war and normalise the use of force, it has also adapted to the changing preferences of strong political and economic actors.
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The Geneva Conventions
International humanitarian law (IHL) is a set of rules that apply to armed conflict, also known as the law of war or the law of armed conflict (LOAC). IHL is made up of treaties, the main ones being the Geneva Conventions and their Additional Protocols, and customary international law. The Geneva Conventions have been ratified by all 196 states, making IHL a universal body of law.
Modern laws of war address a range of issues, including declarations of war, acceptance of surrender, the treatment of prisoners of war, military necessity, distinction and proportionality, and the prohibition of certain weapons that may cause unnecessary suffering. Torture and other forms of ill-treatment are prohibited everywhere and at all times under both IHL and international human rights law (IHRL). While IHL sets outer limits on acceptable behaviour, violations occur frequently, highlighting the gap between agreed rules and reality.
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War declarations
The laws of war, also known as international humanitarian law (IHL), are a component of international law that regulates the conditions for initiating war (jus ad bellum) and the conduct of hostilities (jus in bello). Modern laws of war address declarations of war, acceptance of surrender, and the treatment of prisoners of war, military necessity, distinction and proportionality, and the prohibition of certain weapons that may cause unnecessary suffering.
The modern law of war is derived from three principal sources: lawmaking treaties or conventions, customary international law, and multilateral treaties. The Geneva Conventions, which comprise the central treaties of IHL, have been ratified by all 196 states, making IHL a universal body of law. The conventions themselves codified earlier treaties and crystallised non-treaty international law in the aftermath of World War II.
The Second World War marked a turning point in international law, as it was the first armed conflict in which aerial bombing made the mass-scale targeting of civilians possible. The 1949 Geneva Conventions, along with their Additional Protocols from 1977, explicitly prohibit the intentional targeting of civilians and impose limits on the means and methods of warfare. The first protocol regulates international armed conflicts, while the second addresses non-international armed conflicts. The Third Additional Protocol, established in 2005, created the red crystal emblem alongside the red cross and red crescent.
While treaties such as the United Nations Charter (1945) and the older Kellogg-Briand Pact of 1928 seek to curtail the right of member states to declare war, modern armed conflicts are rarely preceded by formal declarations of war. This undermines the objectives of the Hague Convention, which aimed to establish a legislative foundation superseding a regime based on religion, chivalry, and customs.
International humanitarian law sets outer limits on acceptable behaviour during warfare, aiming to prevent the catastrophic human cost of war and effacement of humanity. Compliance with IHL is about fulfilling its humanitarian purpose, not skirting its boundaries. However, violations occur frequently, creating a gap between agreed-upon rules and reality. States, international institutions, and non-state armed groups must do more to prevent impunity.
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Detention and interrogation
International humanitarian law (IHL) or the law of war is a component of international law that regulates the conditions for initiating war and the conduct of hostilities. It is made up of treaties (the Geneva Conventions and their Additional Protocols) and customary international law. The Geneva Conventions have been ratified by all 196 states, making IHL a universal body of law.
The law of war covers a vast set of rules across all facets of warfare, including detention and interrogation. Detention and interrogation are subject to rules under the Geneva Conventions, which aim to prevent the catastrophic human cost of war. The conventions protect persons who do not, or no longer, take part in the fighting, including civilians, medics, aid workers, wounded, sick and shipwrecked troops, prisoners of war, or other detainees. The conventions also impose limits on the means and methods of warfare, such as the use of certain weapons.
The Geneva Conventions and their Additional Protocols prohibit torture and other forms of ill-treatment, which are prohibited everywhere and at all times. These rules complement each other in creating a comprehensive body of rules for the prevention and punishment of acts of torture and other forms of ill-treatment.
While the law of war provides a universal framework, the gap between agreed rules and the reality on the ground remains a serious challenge. Violations happen in plain sight, and states, international institutions, and non-state armed groups must do more to stop impunity.
The development of modern warfare, with mass recruitment and technological advancements, has created new potential for destruction. International legal scholarship has played a role in adapting justifications for the use of force to the changing preferences of strong political and economic actors. As such, international law has normalized the use of force in certain historical periods.
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Technology's influence on warfare
Technology has had a profound influence on the development of international law in warfare. The modern law of war is informed by the recognition that technological advancements in weaponry and transportation have led to an unprecedented potential for destruction, as witnessed during World War I and II. These advancements have necessitated the adaptation and creation of international legal norms to regulate the conduct of warfare.
The Geneva Conventions, which form a pivotal part of international humanitarian law (IHL), were established in the aftermath of World War II to address the changing nature of conflict. They codified earlier treaties and crystallised non-treaty international law, providing a comprehensive framework for the protection of civilians, medical personnel, and humanitarian workers, among others. The conventions also regulate the treatment of prisoners of war, the wounded, and the sick, as well as imposing limits on the means and methods of warfare, including the use of certain weapons.
The Additional Protocols to the Geneva Conventions, adopted in 1977, marked another significant development. These protocols explicitly prohibited the intentional targeting of civilians, reflecting the growing concern for civilian protection in modern warfare. While the United States has not ratified these protocols, it has incorporated their basic tenets into its military doctrine, treating them as customary international law.
International law continues to adapt to technological advancements in warfare. Military personnel are increasingly aware of the influence of technology on both current and future warfare, and the complex adaptive systems it entails. As technology evolves, so too must the legal framework that governs its use in armed conflict, ensuring the preservation of our shared humanity and the prevention of catastrophic human suffering.
In conclusion, technology has been a driving force in shaping international law in warfare. The recognition of the destructive potential of modern weaponry has led to the development of legal norms aimed at mitigating harm and protecting vulnerable populations. As technology continues to advance, international law must remain adaptable to effectively regulate the conduct of warfare and uphold universal norms of behaviour.
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Frequently asked questions
The law of war is a component of international law that regulates the conditions for initiating war and the conduct of hostilities (jus in bello).
The modern law of war is made up of three principal sources: lawmaking treaties or conventions, customary law, and international humanitarian law (IHL) or the law of armed conflict (LOAC).
IHL sets an outer limit of acceptable behaviour in warfare, covering areas such as targeting, the choice of weapons, detention, interrogation, and the treatment of wounded, sick, and prisoners of war.
International law has recognised the influence of technology on warfare and the need for a whole-of-government response. Additionally, the development of international law has aimed to prevent the catastrophic human cost of war, with specific prohibitions on attacking civilians, medical personnel, and certain emblem-bearing hospital ships.
The law of war faces challenges due to the gap between agreed-upon rules and their implementation, with violations occurring in plain sight. Ensuring compliance with IHL requires efforts from states, international institutions, and non-state armed groups.
