Is War Governed by Law?

What is legally defined as war?

United Nations Charter of 1945, in article 2(4), prohibits “the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

International humanitarian law (IHL)

Is an ever changing part of the international law, which must always be updated. The treaties and other documents concerned with this branch of law must constantly be supplemented (but not abolished) to ensure that all law is up to date on all aspects of war (weapons, technological advances of warfare in general etc.).

IHL could be divided into two branches:

1. Jus ad bellum: Law relating to the criteria which must be satisfied to engage in a war legally - before the conflict breaks out. More fits the description of the international law on the use of force instead of the IHL.

2. Jus in bello : Law that relates to the conduct of warfare, during the armed conflict.

The IHL is not a body of principles that seeks to end armed conflict as a whole. Instead it presumes armed conflict’s existence in its own and seeks to limit the use of violence as much as possible and to protect those not fighting (civilians) or those no longer or simply unable to fight (hors de combat).

History of IHL

International Humanitarian Law dates back to the Battle of Solferino. A Swiss businessman and humanitarian Jean-Henri Durant witnessed the aftermath and suffering of the people involved in the battle (both directly - as combatants/soldiers and indirectly - as civilians). As a result of the atrocities he witnessed, he started the campaign which led to the creation of the first of the Geneva Conventions and the establishment of the International committee for the Red Cross.

Principles of IHL

1. Distinction between combatants and civilians

The prohibition to attack civilians, those who are hors de combat (no longer fighting or able to fight) or POWs (prisoners of war).

2. Targeting principles to reduce unnecessary suffering

2.1 Principle of necessity

2.2 Principle of proportionality

2.3 Principle of precaution

E.g. Cluster bombs and chemical weapons are prohibited (because of the unnecessary suffering they create and the fact that distinction between civilians and combatants is impossible).

The use of nuclear weapons is not in itself a violation of IHL

So long as the use of these weapons is in line with the principles of IHL, it is not illegal. However it would be nearly if not completely impossible to use nuclear weapons in such a way due to their nature. They cause destruction on a large scale making distinction between combatants and civilians impossible as well as causing an incredible amount of unnecessary suffering.

The Components of IHL

1. The Law of the Hague

These are the Hague Conventions of 1899 & 1907.

The law of the Hague concerns itself with:

a) The definition and scope of combatants.

b) The means and methods of warfare.

2. The Geneva Law (The Geneva Conventions)

The Geneva law concerns itself with the protection of those who are unable (hors de combat) or unwilling (civilians) to fight.

There are 4 Geneva Conventions and 3 additional protocols.

It is the 1949 post WWII revised version which is used and referenced the most at the present time.

Belligerent and non-belligerent states

• Belligerent state: is engaged in an armed conflict (currently: Ukraine and the Russian Federation)

• Non-belligerent state: is not engaged in an armed conflict (currently: the UK)

Interesting Interpretation of International Law of War During WWII

Military Insignia

Article 23 of the Hague Conventions forbids improper use of the military insignia, however article 24 stated that “ruses of war and the employment of methods necessary to obtain information about the enemy is allowed”. Creating rather a lot of room for interpretation.

• German combatants dressed in foreign uniforms to pass through enemy territory unnoticed and to acquire crucial parts of communication ( bridges ).

• In the battle of St. Nazaire, a British destroyer was altered to look like a German vessel with the German flag being used. The use of another nation's flag is only allowed before shots are fired.

Reprisal

• in simple terms: payback

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*