This article is written by Anurag Singh from ILS Law College, Pune. This is a comprehensive article that critically analyses the law of war.
“Only the dead have seen the end of the war.”
– George Santayana
Since the beginning of mankind, humans have resorted to violence to settle disagreements. Therefore, the suffering surrounding the violence has been immense ever since. Moreover, just like the advancements in all aspects of life, violence has also been right up there. Earlier, people used to fight with swords to acquire the lands of other kings. Then, the discovery of gunpowder and guns was witnessed, and later with increasing wars all around the globe, there was a need for better resources that’s when nuclear weapons were established. However, with so much violence around through the ages, the ones that suffered and continue to suffer the most are civilians and those who are incapable to fight. Therefore, some people have restored to limit the brutality of the war. This humanitarian spirit led to the formation of the ‘Law of war’ or as we commonly know them as International Humanitarian Law (IHL).
Objective of International Humanitarian Law
Wars are fought between countries to achieve a purpose or to resolve disputes. Therefore, the major object of the humanitarian laws is to achieve the purpose and not cause unnecessary destruction to human life. Moreover, this initiative of less destruction to human life is achieved by limiting the war amongst the soldiers and not attacking civilians or non-competent in the war. Furthermore, treating every person in the war with humanity regardless of which side they are on. For example, humane treatment for prisoners of war and wounded or sick soldiers.
Difference between International Humanitarian Law and Human Rights Law
IHL and international human rights law are complementary bodies of international law that share some common aims. Both IHL and human rights law strive to protect individuals’ lives, health, and dignity. However, people often confuse the two with each other but they both have a different meaning and apply to different sets of people. Let’s understand this.
IHL applies to situations where armed conflict is involved, whereas when we talk about the international human rights law it applies to peacetime activity as well as armed conflict. Therefore, it will be safe to say that, IHL talks about treating the non-combatants with humanity during a situation of war. However, the international human rights law deals with treating everyone with basic human dignity at all times.
Another major difference between the two is their geographical application. It is evident that the IHL applies to situations of war, therefore, the countries party to the war will be under the ambit of these laws. However, human rights laws apply to all persons within the jurisdiction of a state. Therefore, the IHL has an extraterritorial jurisdiction limited to the countries of war whereas the human rights law has unlimited extraterritorial jurisdiction.
Difference between jus in bello and jus ad bellum
Jus in bello and jus ad bellum are two major ingredients for countries that are going to indulge in armed conflict. The latter talks about whether the countries may resort to war or not. The right to war is discussed under jus ad bellum. Moreover, it not only talks about the prohibition but the exceptional conditional under which the countries can go to war.
However, the former talks about the condition after the war has been declared. Therefore it is crystalline that it governs the laws on how the state conducts the war. It seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible. It is essential to note here that IHL is a part of jus in bello and it aims to protect both parties irrespective of any circumstances.
Roots of international law of war
Hostilities between two dynasties, nations, or people from the inception of time have been dealt with violence. People never thought of it as a social ill until the late 1800s. They always thought that war is a necessity to survive, and lived by the philosophy of the survival of the fittest. Therefore, the inhumane treatment of the people during the war was the least of their worries. Subsequently witnessing all these sufferings various treaties and customary international laws were formed and accepted as a medium to regulate war over the years.
Law by treaty
The law of war was first founded by Henry Dunant, in his book ‘A memory of solferino’ he wrote about his experiences during the battle of solferino. After seeing so much suffering around the war, he was shaken. That is when he wrote his book and took the initiative to devise a law that differentiates between combatants and non-combatants. He was of the view that wars are bound to happen but there should be certain rules binding to the countries at war, in order to minimize the suffering for the non-soldiers. His initiative and views were later converted to, what is today known as the Geneva Convention, which is one of the major conventions of international humanitarian law.
When people talk about the Geneva convention, they associate it with the last and final draft of the convention, that is, Geneva Convention 1949. However, it was first formulated in 1864 and was revised three times, in 1906, 1929, and lastly in 1949. The last and final amendment deals with 4 volumes, and each one talks about different issues related to war. Let’s see what these issues are:
- Protects wounded sick soldiers on land (GCI).
- Protect wounded, sick, and shipwrecked soldiers at sea (GCII).
- Treatment of prisoners of war (GCIII).
- Protection of civilian persons (GCIV).
Additional protocols in the Geneva convention widen its scope. There were three protocols: API, APII, and APIII. The first protocol deals with international armed conflict (conflict between two or more countries) and the second protocol deals with non-international armed conflict (conflict within one country). Both these protocols were added to the Convention in the year 1977. However, the latest addition to these protocols was made in the year 2005, which deals with the additional distinction emblem. Under this red crystal emblem (emblem used by medical professionals, non-competent, etc.) was introduced.
Another important founder is Francis Lieber, he is the founder of the Lieber Code. However, this Code was not accepted internationally, it was accepted in the national law. Moreover, all the countries found it hectic to formulate their laws of war, therefore, it was copied by many countries. Interestingly, it became the basis for the formation of the Hague law, which is the most important law in international humanitarian law and one of the first laws that were accepted by the countries at war.
Initially, the Hague conventions talked about two different issues. The Geneva conventions talked about the protection of people that are no longer part of the war or have not been a part since the very beginning. However, the Hague convention talked about the means and methods of warfare. Let’s understand the Hague convention.
Hague conventions were introduced twice, initially in 1899 and then in 1907. At the time no exhaustive laws were surrounding the issue of humanitarian law. Therefore, Martens Clause in the Convention was added for the countries that did not give their assent for the peace convention, which stated that in case of any law in force, the principle of humanity and the order of public conscience shall be obeyed. Four major issues were talked about in the initial convention, they are:
- Prohibiting the discharge of projectiles or explosives from balloons.
- Prohibiting the use of asphyxiating gases.
- Prohibiting the use of expanding bullets.
- Limitation of weapons proposal.
All the countries agreed on the first three issues because they were causing excessive suffering to the people. However, none of the countries agreed on the last issue of restricting their weapons in the war. Subsequently, in 1907 only the first issue was raised and was agreed upon.
However, it is essential to take note here that, these are a few of the most important conventions, there are a lot more conventions that talk about international humanitarian law. These were just the very first ones that started the revolution of giving humane treatment to people during external aggression or armed conflict.
Law by custom
According to Salmond, “custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility”. Therefore, it will not be out of place to state here that law by custom is an established pattern of behavior that can be objectively verified within a particular social setting. Two essential features have to be looked into when talking about the customary law during the war:
- A certain legal practice is observed and.
- The relevant actors consider it to be a law (opinio juris).
Judicial decisions play a major role in customary law. An international military tribunal was set in Nürnberg and Tokyo, post World War II, to charge people for the crime of war. Moreover, they also delivered guidelines for the other international court to follow, as the number of cases after the war seemingly were very high.
For example, In Shimoda v. Japan (1983), a Japanese Court held that the use of atomic weapons against Nagasaki and Hiroshima was contrary to international law, not merely because of the type of weapon used but because bombardment, by any means, of the civilian population of those two cities, was contrary to the Article 23 of the Hague Conventions of 1907. This set a precedent for all the wars in the future, to abandon the use of such deadly weapons.
Another acceptable form of customary law is opinio juris, an example of this is the Martens clause of the Hague Convention. Which clearly stated that regardless of the state’s party to the treaty in force they have to follow the humanitarian law.
‘War’ defined by Webster’s Dictionary is a state of open and declared hostile armed conflict between states or nations, or a period of such conflict. However, it will be safe to say that not all armed conflicts are an act of war. For example, in the fighting over Manchuria between Japan and China from 1937 to 1945, the Japanese refused to call the conflict a war.
The important question here is that can any country declare war against any other just because they wished to. The answer is no, the UN Charter clearly states that no country can go into war. However, they do have a right to defend themselves against any hostilities from another counter under Article 51 of the UN Charter. For example, if one of the countries breach the peace with an act of aggression or at the border start deploying heavy weapons, then, in that case, the neighbouring country has the right to defend themselves and deploy some weapons of their own and if need be use them to protect their country.
People all around the globe, since the very inception of mankind, have realized one thing that between countries there are bound to be disagreements that may lead to violence. Therefore, the focus should be shifted towards minimizing the suffering from these armed conflicts among the countries, keeping the non-combatant and non-competent out of the war. Keeping that in mind all the international humanitarian laws have been formulated to this date. Nowadays the countries are resorting to peace instead of violence to resolve their disputes, which is a great sign of humankind everywhere because there is saying nothing good has ever come out of war, which is painfully true and this is what every country has understood. Therefore, the future is bright until we don’t need to use these international humanitarian laws very often.
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