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The laws of war and aimed conflict is a body of law concerning acceptable justifications to engage in (jus ad bellum) right to wage war, and the limits to acceptable war time conduct (Jus in bello). The law of war s considered an aspect of public international law (the law of nations) and is distinguished from other bodies of law, such as the domestic law of a particular belligerent to a conflict that may also provide legal limits of the conduct or justification of war. Among other issues, the laws of war addressed other vital issues such as declaration of war, acceptance of surrender, the treatment of prisoner of war, acceptance of surrender, the treatment of prisoners of war, differentiation between combatants and non combatants, the principle of military necessity along with distinction and proportionality and the use of or prohibition of certain weapons that may cause unnecessary suffering especially to the civilian population.
Also referred to as international humanitarian law, the laws of war or customs of war is the legal corpus that comprises the Geneva. Conventions and the Hague conventions as well as subsequent treaties, case laws and customary international law. It defines the conduct and responsibility of belligerent nations, neutral states and individuals engaged in war fare, in relation to each other and protected persons usually civilians. The laws of war is mandatory for nations bound by the appropriate treaties. There are other customary unwritten rules of war many of which were explored at the nurembering trials. All these define the permissive rights of states as well as prohibitions on their conduct in times of conflict.
Historical background: efforts to regulate the conduct of individuals, nations and other agencies in war to mitigate the worst effects of war have a long history. The earliest known instances are found in the old testament of the holy Bible. In Deuteronomy 20:19-20, the following laid down rules were put in place:
When thou shall besiege a city a long time in making war against it, thou shall not destroy the trees thereof by forcing an area against them, for thou mayest eat of them and thou shall not cut them down (for the tree of the field Is man’s life) to employ them in the siege. Only the trees which thou knowest that they be not trees for meat, thou shall destroy and cut them down and thou shall build bulwarks against the city that maketh war wit thee, until it be subdued…
Even in the midst of the carnage of history, there were expressions of humanitarian worms to protect the victims of armed conflict comprising the wounded, the sick and the ship wrecked. This attempt dates back to ancient times. Again in the old testament, the king of Israel prevents the slaying of the captured based on prophet Elisha’s admonition to spare the enemy. He advised the king on the fate of prisoners of war.
You shall not slay them. Would you slay those whom you have taken captive? set bread and go to their master….
Islamic law provides that “non combatants who did not take part in fighting such as women, monks and hermits, the aged, the blind and insane” were not to be molested.3‑
Stop, o’ people that I may give you ten rules for your guidance in the battle field. Do not commit treachery or deviate from the path. You must not mutilate dead bodies. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy’s flock, save for your food. You are likely to pass by people who have devoted their lives to monastic service, leave them alone…4
Those rules were put into practice during the early Muslim conquests of the 7th and 8thcenturies. From them onwards, Islamic legal treaties on international law covered the application of Islamic military jurisprudence to hostages, refrugees and prisoners of war, the right of asylum, conduct on the battle, protection of women, children and civilians across the line of battle, the use of poisonous weapons and the devastation of the enemy territory. These laws were put into practice by Muslim armies during the crusades.
Islamic jurists have held that a prisoners should not be killed as he cannot be held responsible for mere acts of belligerency.5 Islamic law however did not spare all non-combatants. In the case of those who refine to convert to Islam or pay alternative case, were allowed in principle to kill any one of them, combatants or non combatants provided they were not killed treacheranly and with mutilation…6
In ancient India, thereare records for example the laws of Manu, describing the type of weapons that should not be used in battle soldiers were given specific instructions.
….. When he fights with his foes in battle, let him not strike with weapons concealed in wood, nor with such as are barbed, poisoned or the points of which are blazing with fire….7
There is also the command not to strike the eunuch nor the enemy who… folds his hands in supplication… nor he who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight…8
In medieval Europe, the roman catholic church also promulgated teachings on Jurt War. This was reflected in the rise of peace movements such as the “ peace and truce of hood” a medieval European movement of eth catholic church which applied spiritual sanctions in order to limit the violence of private wars in feudal societies. This movement constituted the first organized attempt to control civil society in medieval Europe through non-violent means. This great impulse to restrich the extent of warfare and especially protect the lives and property of non-combatants continued with Hugo Grotius- philosopher, theologian, Christian apologist, play Wright, poet etc. whose work laid the foundation for international law and the laws of war.
Growth of modern laws of war:
Modern humanitarian international law is made up of two historical streams. The law of the Hague referred to in the part as the laws of war proper and the law of Heneva or Humanitarian law. The two streams take their names from a number of international conferences which drew up treaties relating to war and conflicts, in particular the Hague contentious of 1899 and 1917, and the Geneva conventions, the first of which was drawn up in 1863. both are branches of jus in Bello international law regarding acceptable practices while engaged in war and armed conflict.
The law of the Hague or the law of war proper “determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm.9 in particular, it concerns itself with the definitions of combatants, established rules relating to the means and methods of warfare and examines the issue of military objectives. 10
The long and systematic attempts to limit the savagery of warfare only began to develop in the 19th century. Such concerns were able to build on the changing view of warfare by states influenced by the age of enlightenment. The purpose of warfare was to overcome the enemy state and this was obtainable by disabling the enemy combatants. Thus, the distinction between combatants civilians, the requirement that wounded and captured enemy combatants must be treated humanly, and that quarter must be given some of the pillars of modern humanitarian law all follow from this principle.
Codifications of humanitarian norms: It was not until the second half of the 18thcentury that a more systematic approach was initiated. In the United States, a German immigrant, Francis Lieber drew up a code of conduct in 1863 which came to be called the Lieber code for the Northern army. The lieber code included the humane treatment of civilian populations in the areas of conflict and also for bade the execution of prisoners of war. At the same time, the involvement of a number of individuals such as Florence nightingale during the Crimean war and Henry Dunant, a Swiss business man who had worked with wounded soldiers at the battle of solferino led to more systematic efforts to prevent the suffering of war victims.
Dunant wrote a book titled “a memory of solferino” in which he described the horrors he had witnessed. His reports were so shocking that they led to the founding of the international committee of the Red Cross (ICRC) In 1864. the ICRC then drew up the “Genera Convention” for the Amelioration of the condition of he wounded in Armies in the field.12. The law of General is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personal horsed combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organization such as the ICRC. 13
The Geneva convention: The Geneva conventions are the result of a process that developed in a number of stages between 1864 and 1949, which focused on the protection of civilians and those who can no longer fight in a conflict. As a result of world war II, all former conventions were revised based on previous revisious and partly on some of the 1907 Hague conventions. And re-adopted by the international community in 1949. later conferences hacve added provisions prohibiting certain methods of warfare and addressing issues of civil wars.
The Geneva conventions are 13
1. First Geneva convention: for the Ameciovation of the condition of wounded, sick in armed forces in the field this was adopted in 1864.
2. Second Geneva convention: For eh Amehioration of the condition of wounded sick and ship wrecked members of timed forces at sea. This was adopted in 1949.
3. Third Geneva Convention: relating to the treatment of prisoners of war, first adopted in 1929.
4. Fourth Geneva Convention: Relating to the protection of civilian persons in time of war first adopted in 1949.
5. 1977 protocol 1: Relating to the protection of victims of international armed conflict.
6 1977 protocol II: relating to the protection of victims of non-international armed conflicts
7. Protocol III (2005): relating to the adoption of an additional distinctive emblem.
While the Geneva conventions of 1949 can be seen as the result of a process which began in 1864, to day, they have achieved universal participation with 1941 parties. This means that they apply to almost any international armed conflict14.
The basic rules of international humanitarian law are summarized as follows:
1. Persons “hors de combat” and those not directly taking part in hostilities shall be protected and treated humanely.
2. It is forbidden to kill or injure an enemy who his surrendered or who is “hors de combat”
3. The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power.
4. A paraduction or soldier ceasing a plane in distress is protected.
5. The emblem of the ‘Red Cross” or ‘ Red Crescent’ shall be respected as a sign of protection. It is inviolate.
6. captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
7. the use of chemical biological or meteorological weapons is prohibited.
8. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
9. parties to a conflict and members of their armed forces do not have unlimited choice of methods and means of warfare.
10. The position of neutral states must be acknowledged and respected.
11. Parties to a conflict shall at all times distinguish between the civilians population and combatants.
12. Prisoners of war should not be killed or subjected to torture or medical and biological experiment.
13. Attacks shall be directed solely against military objects, civilians centers such as chamber, hospitals, school, museums must be protected.
14. An attack on doctors or ambulances displaying a red cross emblem is prohibited.
15. it is prohibited to fire at a person or vehicle or ship bearing a white flag, since that, being considered the flag of trace, indicates an intent to surrender or desire to communicate.
The person or persons protected by the red cross or white
flag are expected to maintain neutrality and they may not engage
in war like acts themselves. In fact, engaging in war like activities
under a white flag or red cross is in itself a violation, of the laws of
war. This is perfidy.
Purposes of the laws of war:
Some of the central principles underlying the laws of war are to ensure that
1. Wars should be limited to achieving the political goals that led to the war and should not lead to unnecessary destruction.
2. Wars should be executed with speed and brought to an end as quickly as possible.
3. Persons and property that do not contribute to the war efforts should be protected against unnecessary destruction and hardship.
4. Laws of war are intended to mitigate the evils and atrociousness of war by protecting both combatants and non combatants from unnecessary suffering.
5. Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy particularly prisoners of war, the civilians the wounded and the sick.
6. Facilitating the restoration of peace.
7. The laws of war placed limits on the lawful exercise of the power and ability of the belligerents or employing a level of violence considered unnecessary or unreasonable for specific military purposed.
8. Belthgerents must conduct hostilities with regard for the principles of humanity and chivalry.
Application of Laws of War to States and Individuals
The laws of war is binding not only upon states as such but also upon individuals and in particular the members of the armed forces parties are bound by the laws of war to the extent that such compliance does not interfere with achieving legitimate military goals. Combatants who deliberately bomb residential areas are guilty of war crimes.
Similarly, combatants who intentionally use protected people, areas and property as shield or camouflage are guilty of violations of laws of war and we responsible to those that should be protected.
Soldiers who break specific provisions of the laws of war loses the protections and status afforded as prisoners of war. They have by such acts become unlawful combatants and they must be made to face a ‘competent tribunal. They must however be treated with humanity and right to fair hearings and regular trial.
Spies and terrorists may be subject to civilians or military tribunal for their acts and in practice may be subjected to torturen or executions. They laws of war neither approves nor condemns such acts. However, nations that are signatory to the UN convention against torture are often more careful not to subject anyone to torture.
Under any condition. The controversy that surrounded America’s extra ordinary rendition policy was a source of serious embarrassment to the bush administration when it became known that governmental approved the idea of subjected terror suspects to torture and in human treatment, but where he has committed acts against the state, the court or tribunal will determine his punishment. In war, all is not given. A nation and its army cannot just do all it could to win victory. Actions must be regulated within the bounds of reason and guided by what is permissible and acceptable under the laws of war. At the cessation of hostilities, persons who have committed war crimes would be held accountable for their actions. Officers and commanders and indeed politicians, who have given orders that breached the laws of war are held individually accountable. Those who commit atrocities are also made to face the consequences of their action. Nations that have signed the Geneva conventions are expected to search out and punish their own officers and men who have committed or given orders that led to the commission of war crimes, crimes against humanity or atrocities.
History have shown that laws of war are traditionally more strictly applied to the defeated as the victors are placed in the role of determining the rules of engagement. There are strongly held views in many parts of the world that George Bush and Tony Blair should be held accountable for the faulty premise that spurned the Irag war of 2003. The argument is that the Iraqi people were subjected to years of hardship and mayhem, not became Saddan Hussein was a danger to the world but simply to effect the regime change policy of London and Washington.
Recently, private corporation can now be held civilly liable for aiding and abetting war crimes. Some corporations and MNC’s have be accused of knowingly providing assistance in the commission of war crimes. Private security.
Effects of the laws of war on warfare.
There are those who believe that the issue is not just giving warfare a human face but outdating totally the idea of war. Some have suggested the establishment of a world government or a collective security arrangement on the baris of one for all and all for one. Unfortunately, this idea remain a utopian project. War is an instrument of polities and will continue to play a vitals rule in inter state relationship as a policy option when diplomacy fails. The desire to give warfare a moderating human face is a recognition of this fact.
There are evidence to show that the laws of men has gained relative success in the effort to regulate human conduct in the field of battle. Some of these effects include the following:
1. The existence of the law of war has led to a degree of acceptance and observance of certain valuable and baric ideas, for instance the protection of prisoners of war.
2. That a state is entitled to neutrality vis a vis a conflict situation involving other states irrespective of the relationship between them. Such neutrality is respected.
3. That military invation / occupation of another country’s territory must be regarded as provisional and involves duties as well as rights for the occupies and the occupied respectively.
4. That certain places eg. Hospitals churches, national centers and archives etc. are normally spared as non legitimate targets of attack.
5. Persons not taking active part in the conflict for instance women, children, the aged and sick, are spared from the unpleasant consequences of war, as much as possible.
6. Torture has been accepted as a wrong weapon in war and even though it is still widely employed, the awareness that torture is illegal has continued to gain immense grand.
The extent to which the laws of war are observed depends on the combatants being aware of them. Most times, the laws of war are violated more out of ignorance than a deliberate desire to do so. To this end the 1977 Geneva convention made it mandatory that countries should educate their soldiers on the laws of war and provide combatants with pamphlets and manuals while out on a military campaign. The principles of reciprocity have also advanced the observance of the laws of war and armed conflict.
War Criminals:
At the end of a war, the following could be held accountable for their actions if it violates the wars of other.
1. Persons involved in conspiracies: industrialists, financiers soldiers, politicians etc who were indicted for such crimes including policies, decisions, action and inactions which could lead to aggression or the violations of te laws of war.
2. Members of the enemy forces and civilians charged with ordinary offences against the laws of war.
3. Collaborationists found guilty of treason or treachery.
4. Person guilty of gross failure to control subordinates responsible for atrocities.
5. Those with the ability to influence public opinion who may have passed on late massages responsible for genocide or crimes against humanity eg. Media personnel, religions preachers, academicians etc.
Just and unjust wars
The doctrine of just and unjust war has been one of the controversial issues that history have had to contend with theologians in particular were concerned about the increasing incidence of violence in the world. They raised several questions which demanded clear answers.
Such questions include the criteria upon which a prince or monarch could go to war. On what basis could a war be proven to be North while considering other related, consequences? Considering the light level of brutality and savagery that war entails, it became necessary to protect the victims of the hostile states.
For many centuries, the attitude of the world power towards the legality of war were dominated by the teachings of the Roman catholic church. One of the first theologians to write on the subject was St. Augas time (354-430). He tried to determine the basis under which a war could be described as just.
…… just wars are usually defined as those which avenge injuries, when the nation or city against which warlike action warlike action is to be directed ahs neglected either to punish wrongs committed by its own citizens or to restore what has been unjustly taken by it. Further that kind of war is undoubtedly just while God himself ordains……
These ideas held sway for a period of over a thousand years. War was regarded as a means o obtaining reparations for wrongs previously suffered. Wars against unbelievers and genetics were also regarded as God’s war and such wars are believed to be commended by God himself.
However, from the late 16th century the distinction between just and unjust wars began to break down theologians and scholars began to admit that each side in a war could be blameless if it genuinely believed that it was on the right. Other questions that arose include who has the right to declare a war. If they wrong authority declares a war, is it a just war or not? Could issues be determined on moral and immoral rounds? What role does plain human emotion play on the incidence of war.
War were said to be justified if they were fought for the defense of certain vital interest but each state remained the sole judge of its vital interests without a precise definition. The doctrine of vital interests constituted, not a legal criterion of the legality of war, but a source of political justification and excuses to be used for propaganda purposes.
In an unjust war the question of your tactics does not arise since the war has been declared unjust. If a war in just, then the questions raised are whether in pursuit of a just war one should use all the means of his disposal. Secondly, when involved in a just war, the support of the international community, (IPO) will be on the side of the belligerent.
Colonized people, fighting to throw off a foreign colonical power may be called terrorists or bandits by the colonial power but such war would be seen as a just war. Such a war is just since war would be seen as a just war. Such a war is just since it was not meant to disrupt international peace and tranquility. Attempts by colonized people to free themselves through force of arms war recognized by the Geneva protocol of 1977. They were seen as legitimate participants in armed conflict. They could not be described as terrorists or bandits or crooks. However, was intended for economic reasons and expansionish purposes and hegemonic or ideological influences are unjust wars. Those are wars of aggression.
Principles of Combat.
The most fundamental customary principles of international laws is that the rights of belligerents to adopt means of injuring the enemy is not unlimited. There must be some of thesie principles are explained below: fairness even in war.
1. The principles of proportionality:which deals with the response of a belligerent in a conflict to grievance that has been committed in relation to the activities of the opponent an in relation the response of the other side. A state in other words, cannot use excessive force in responding to a grievance beyond the proportion necessary. The infliction of disproportionate injury or harm in life and property is regarded, as inhuman and therefore illegal.
2. The principle of military necessity:This principle demands that only that degree of force not otherwise prohibited by the laws of aimed conflict required for the partial or complete submission of the enemy and with millimum expenditure of time, life and physical resources may be applied.
3. The Principle of humanity: The employment of any kind of degree of force not required for the purpose of the partial or complete submission of the enemy with a minimum expenditure of time, life and physical resources is prohibited by the law of war. It is regarded as going beyond acceptable human levels.
4. The principles of chivacry:Dishonorable and treacherous means or conduct during armed conflict are forbidden. Shooting a surrendered or wounded soldier is against the laws of war. Such a solider has become incapacitated and should be placed at the mercy of eh enemy. If on the other hand the one feigning injury or surrender turns back to school the other person he would be held liable to treacherous conduct.
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