Keith Mack
The law of war, also known as international humanitarian law (IHL), is a set of rules that regulate the conditions for initiating war and the conduct of hostilities. While the concept of a right to war presupposes a declaration of war and is based on the idea of war as an armed conflict that is limited in space, time, and objectives, the law of war aims to protect those who are not fighting in the conflict and curb brutality by setting limits on weapons and tactics. The rules of war have existed for centuries, with the first traces found in the Code of Hammurabi, which imposed a code of conduct for war, and have since been ratified by 196 states.
| Characteristics | Values |
|---|---|
| Purpose | To maintain humanity in armed conflicts, saving lives and reducing suffering |
| Applicability | Universal |
| Basis | Customary international humanitarian law |
| Creation | The first Geneva Convention was established in 1864 by Henri Dunant, the founder of the Red Cross |
| Ratification | 196 states |
| Enforcement | War crimes are documented and investigated by states and international courts; individuals can be prosecuted for war crimes |
| Updates | The International Committee of the Red Cross (ICRC) tracks the evolution of warfare and makes recommendations for updates |
| Scope | Declarations of war, acceptance of surrender, treatment of prisoners of war, military necessity, distinction and proportionality, prohibition of certain weapons |
| Underlying Principles | 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 |
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What You'll Learn
International humanitarian law
IHL is based on two historical streams: The Law of The Hague, or the law of war proper, and The Law of Geneva, or humanitarian law. The Law of The Hague determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm. It deals with the question of whether certain practices are acceptable during armed conflict. The Law of Geneva, on the other hand, is directly inspired by the principle of humanity and relates to those who are not participating in the conflict, as well as to military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations.
The rules of IHL are designed to balance humanitarian concerns and military necessity, limiting the destructive effects of war and alleviating human suffering. They aim to protect civilians, humanitarian workers, and medical workers during armed conflicts and curb the brutality of war by setting limits on the weapons and tactics employed. The rules also define sovereignty and nationhood, states and territories, occupation, and other critical terms of law.
IHL violations have been on the rise in recent years, with attacks on buildings belonging to relief organizations, hijacking of vehicles and convoys, and attacks on hospitals, schools, and staff. Enforcing the rules of IHL can be challenging due to the vested interests of powerful countries in conflicts. However, violations of IHL are considered war crimes, and individuals can be prosecuted for their actions.
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Treaties and customary law
Treaties and customary international humanitarian law (IHL) are two sources of international law that govern the laws of war. Treaties are written conventions in which states formally establish certain rules and are binding only on those states that have expressed their consent to be bound by them, usually through ratification. Treaties are of utmost importance as they fill gaps left by customary law and strengthen the protection offered to victims. Treaties such as the four Geneva Conventions of 1949, the Hague Convention of 1907, and the Universal Declaration of Human Rights are widely accepted and ratified by states.
Customary international law, on the other hand, is derived from "a general practice accepted as law". This means that a practice is considered legally binding if it is generally accepted as such. For example, the Nuremberg War Trials held that the Hague Convention of 1907 was part of customary law and binding on all parties, regardless of whether they were signatories. Customary law is dynamic and changes over time, reflecting the evolving nature of armed conflicts. It is established by the general practice of nations together with their acceptance that such practices are legally required. Official accounts of military operations, military manuals, national legislation, and case law are some of the documents that reflect customary international law.
The Martens Clause underscores the continuing importance of customary law, even in the presence of treaties. Customary law fills in the gaps left by treaty law and strengthens the protection of victims. Positive international humanitarian law, which consists of treaties, can be contrasted with customary laws of war, which were also explored at the Nuremberg War Trials.
The recognition of treaties and customary international law as sources of international law is enshrined in documents such as the Statute of the International Court of Justice. National and international courts and tribunals, such as the International Criminal Tribunal for the former Yugoslavia, play a crucial role in enforcing these laws and prosecuting war crimes.
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War crime investigations
The rules of war, or international humanitarian law (IHL), are a set of international rules that govern the conduct of war and armed conflict. The law of war is a component of international law that regulates the conditions for initiating war and the conduct of hostilities. The rules of war aim to maintain humanity in armed conflicts, save lives, and reduce suffering. They seek to protect those who are not involved in the conflict and curb the brutality of war by setting limits on the weapons and tactics employed.
War crimes are documented and investigated by states and international courts, and individuals can be prosecuted for war crimes. War crime investigations are carried out by various organisations, including the International Criminal Court (ICC), INTERPOL, and national authorities such as the Human Rights Violators and War Crimes Center (HSI) in the United States. These organisations work together to gather evidence, identify witnesses and victims, and build cases against violators.
The ICC, for example, sends investigators to areas where alleged crimes occurred to gather evidence and focuses on situations where war crimes, crimes against humanity, and genocide are alleged to have been committed. INTERPOL, on the other hand, provides operational and investigative support to partner organisations and war crimes investigators in its member countries. They also participate in genocide networks and help international tribunals and national authorities in arresting fugitives.
HSI, as a US-based organisation, investigates violations of US laws that criminalise torture, war crimes, recruitment and use of child soldiers, female genital mutilation, and genocide. They work to prevent war criminals from entering the United States and investigate those already within the country. HSI also supports efforts to return violators to their home countries to face justice.
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The right to make war
The rules of war, or international humanitarian law (IHL), set out what can and cannot be done during an armed conflict. They aim to maintain humanity in armed conflicts, save lives, and reduce suffering by balancing the weakening of the enemy with limiting brutality. These rules protect people who are not fighting in the conflict, such as civilians, aid workers, and hospitals, by setting limits on the weapons and tactics employed. For example, the rules helped guarantee safe passage for civilians in South Sudan in 2014.
The first traces of a law of war can be found in the Code of Hammurabi, created by Hammurabi, king of Babylon, in 1750 B.C., which imposed a code of conduct in the event of war. Early Christian writers considered that Christians could not be soldiers or fight in wars, but Augustine of Hippo contradicted this and wrote about the 'just war' doctrine, explaining when war could be morally justified. In 697, Adomnan of Iona gathered Kings and church leaders from Ireland and Scotland and gave them the 'Law of the Innocents', which banned the killing of women and children in war and the destruction of churches.
In the 17th century, Dutch thinker Hugo Grotius wrote about and practised 'just-war theory', viewing war as a morally legitimate activity and a means for states to enforce their rights and collect reparations. He argued that if states had the right to wage war to right legal wrongs, they also had the right of conquest, claiming sovereignty over captured territory.
Modern rules of war can be traced to Henri Dunant, the founder of the Red Cross, who began the process of codifying customs into international humanitarian law. In 1864, he helped establish the first Geneva Convention, requiring armies to care for the sick and wounded on the battlefield. The Geneva Conventions are now the core element of IHL and have been ratified by all 196 states.
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The conduct of war
The law of war defines sovereignty and nationhood, states and territories, occupation, and other critical legal terms. Modern laws of war address declarations of war, acceptance of surrender, and the treatment of prisoners of war. They also cover military necessity, the distinction between civilians and combatants, proportionality, and the prohibition of certain weapons that may cause unnecessary suffering. The rules of war are universal, and the Geneva Conventions, which are the core element of IHL, have been ratified by all 196 states.
The idea of a right to war is based on the concept of armed conflict being limited in space, time, and objectives. War begins with a declaration and ends with a treaty or surrender agreement. The laws of war serve the conflicts that are currently taking place, and as conflicts change, so do the laws that govern them. The first traces of a law of war can be found in the Code of Hammurabi, created by King Hammurabi of Babylon around 1750 B.C. This code imposed rules on the strong to protect the weak during wartime.
International humanitarian law seeks to limit the effects of armed conflict and protect those who do not or no longer take part in the fighting, including civilians, medics, aid workers, the wounded, sick, shipwrecked troops, prisoners of war, and other detainees. IHL imposes limits on the means and methods of warfare, including the use of certain weapons. It is made up of treaties, such as the Geneva Conventions and their Additional Protocols, and customary international law.
The rules of war are challenging to enforce, and there is a growing disregard for them in conflict zones. When rules are broken, war crimes are documented and investigated by states and international courts, and individuals can be prosecuted.
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Frequently asked questions
The law of war is a component of international law that regulates the conditions for initiating war (jus ad bellum) and the conduct of hostilities (jus in bello).
The rules of war, or international humanitarian law (IHL), are based on the idea that there should be some humanity in armed conflicts, saving lives and reducing suffering.
The responsibility to prevent and punish violations of IHL belongs primarily to states. IHL requires states to investigate serious violations and, if appropriate, prosecute the suspects.
The rules of war dictate what can and cannot be done during an armed conflict. They aim to protect civilians and curb the brutality of war by setting limits on the weapons and tactics that can be used.
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