When Do Laws Of War Apply?

The laws of war, or international humanitarian law (IHL), are a set of international rules that govern the conditions for initiating war and the conduct of hostilities. They are designed to maintain humanity in armed conflicts, protect civilians and prisoners of war, and reduce suffering by balancing the need to weaken the enemy with the need to limit harm. The laws of war are universal and apply to all individuals and states involved in an armed conflict, including both governmental forces and non-state armed groups. The Geneva Conventions, which have been ratified by all 196 states, form the core element of IHL and set out how soldiers and civilians should be treated during war.

International humanitarian law (IHL) and international human rights law (IHRL)

IHL regulates the conduct of hostilities and the protection of persons in situations of armed conflict. It applies during wartime and is binding on all parties to an armed conflict, including states and non-state actors. The core element of IHL is the Geneva Conventions, which have been ratified by all 196 states. IHL cannot be suspended, except as provided in Article 5 of the Fourth Geneva Convention.

On the other hand, IHRL protects individuals from the abusive or arbitrary exercise of power by state authorities. It applies at all times, in peace and war, and is binding on states alone. IHRL allows states to suspend certain human rights in emergencies, such as restricting freedom of movement during an armed conflict or natural disaster to protect the population. However, certain fundamental rights, such as the right to life and protection against torture, cannot be suspended.

In situations where IHL and IHRL apply simultaneously, their provisions mutually reinforce each other. For example, both bodies of law prohibit torture and inhuman and degrading treatment and provide fair trial guarantees. However, there are also differences in their approaches, such as in the distinction between combatants and non-combatants, where IHRL affords the same standard of protection to everyone.

Treaties and customary international law

Customary international law, on the other hand, refers to the practices and norms that states follow during wartime. This body of law is not codified in treaties but is derived from the general practices of nations and their acceptance that such practices are legally binding. Customary international law is dynamic and ever-evolving, adapting to the changing nature of warfare. It fills the gaps left by treaty law and provides a framework for addressing new challenges and issues that may arise.

The Martens Clause, found in the 1899 Hague Conventions and subsequent major treaties, is a key component of customary international law. It states that:

> Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.

This clause ensures that even in situations not covered by specific treaties, the principles of humanity and public conscience continue to protect individuals affected by conflict.

The interplay between treaties and customary international law is complex. Treaties may codify existing customary laws, as seen with the Hague Convention of 1907, which was deemed to reflect customary international law by the Nuremberg Tribunal. On the other hand, treaties can also shape and influence the development of customary international law. This dynamic relationship ensures that the laws of war remain adaptable and responsive to the evolving nature of armed conflict.

The Geneva Conventions

The four Geneva Conventions of 1949 are:

• The First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field"
• The Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea"
• The Third Geneva Convention "relative to the Treatment of Prisoners of War"
• The Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War"

War crimes and consequences

The rules of war, or international humanitarian law (IHL), are a set of international rules that outline what can and cannot be done during an armed conflict. The Geneva Conventions, which have been ratified by all 196 states, are the core element of IHL. These conventions set out how soldiers and civilians should be treated in war, and are considered universal.

If the rules of war are broken, there are consequences. War crimes are documented and investigated by states and international courts, and individuals can be prosecuted for war crimes. War crimes include the mistreatment of prisoners of war, harm to civilians, and the use of certain weapons that cause unnecessary suffering.

The laws of war aim to regulate the conditions for initiating war (jus ad bellum) and the conduct of hostilities (jus in bello). They define critical terms and concepts such as sovereignty, nationhood, states, territories, and occupation. The laws of war also address declarations of war, the acceptance of surrender, the treatment of prisoners of war, military necessity, distinction, and proportionality.

The development of modern weapons and advancements in warfare technology have posed challenges for the laws of war, as they struggle to keep up with the rapid changes and their impact on the natural environment. As a result, it is important to constantly supplement and adapt the laws to reflect new realities.

The laws of war are based on consensus and are subject to varying interpretations. They are derived from international treaties, custom, and general principles. International treaties, such as the Geneva Conventions, are agreements between nations that outline the rules of war. Customary international law, on the other hand, refers to the practices and accepted norms of nations that are not necessarily codified in treaties. General principles, such as distinction, proportionality, and military necessity, guide the legal use of force in armed conflicts.

The consequences of violating the laws of war can include specific and deliberate violations of the laws in reprisal during a conflict. After a conflict ends, individuals who have committed or ordered breaches of the laws of war may be held accountable and prosecuted for war crimes. Additionally, nations that signed the Geneva Conventions are required to search for, try, and punish those who committed "grave breaches" of the laws.

The role of the International Committee of the Red Cross (ICRC)

The International Committee of the Red Cross (ICRC) is a humanitarian organisation based in Geneva, Switzerland, and is a three-time Nobel Peace Prize laureate. The ICRC is part of the International Red Cross and Red Crescent Movement, along with the International Federation of Red Cross and Red Crescent Societies (IFRC) and 191 National Societies. It is the oldest and most honoured organisation within the movement and one of the most widely recognised organisations in the world.

The ICRC has played an instrumental role in the development of rules of war and promoting humanitarian norms. It is the only institution explicitly named in international humanitarian law as a controlling authority. The legal mandate of the ICRC stems from the four Geneva Conventions of 1949, as well as its own statutes. The ICRC also undertakes tasks that are not specifically mandated by law, such as visiting political prisoners outside of conflict and providing relief in natural disasters.

The ICRC's official mission is to:

> protect the lives and dignity of victims of war and internal violence and to provide them with assistance.

The ICRC's core tasks, which are derived from the Geneva Conventions and its statutes, include:

• Monitoring compliance of warring parties with the Geneva Conventions
• Organising nursing and care for those who are wounded on the battlefield
• Supervising the treatment of prisoners of war and making confidential interventions with detaining authorities
• Helping with the search for missing persons in an armed conflict (tracing service)
• Organising protection and care for civil populations
• Acting as a neutral intermediary between warring parties

The ICRC drew up seven fundamental principles in 1965 that were adopted by the entire Red Cross Movement: humanity, impartiality, neutrality, independence, volunteerism, unity, and universality.

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