Since the beginning, humans have resorted to violence as a way to settle disagreements. Yet through the ages, people from around the world have tried to limit the brutality of war. It was this humanitarian spirit that led to the First Geneva Convention of 1864, and to the birth of modern rules of war. Setting the basic limits on how wars can be fought, these universal laws of war protect those not fighting, as well as those no longer able to. They dictate what can and cannot be done during armed conflict.
To do this, a distinction must always be made between who or what may be attacked, and who or what must be spared and protected. The rules of war aim to protect people who are not fighting in the conflict and curb the brutality of war by setting limits on the weapons and tactics that can be employed. They are all about making choices that preserve a minimum of human dignity in times of war, and makes sure that living together again is possible once the last bullet has been shot.
History of the rules of war
Although the modern rules of war can be traced back to ancient civilizations and religions, it was Henri Dunant, the founder of the Red Cross, who began the process of codifying these customs into international humanitarian law. In 1864, he helped establish the first Geneva Convention, an international treaty that required armies to care for the sick and wounded on the battlefield. It was adopted by 12 European countries.
After that, diplomats debated and adopted additional amendments and treaties to address the treatment of combatants at sea and prisoners of war – not just combatants on battlefields. In 1949, after the horrors of World War II, diplomats gathered again in Geneva to adopt four treaties that reaffirmed and updated the previous treaties and expanded the rules to protect civilians. They’re now collectively known as the Geneva Conventions of 1949 and contain the most important rules of war.
Upholding the rules of war
Since then, the rules of war have been ratified by 196 states. They protect people who are not fighting in the conflict and curb the brutality of war by setting limits on the weapons and tactics that can be employed. They’re also used in domestic and international courts to determine if a government or non-governmental militant group is guilty of a war crime.
If a warring party is accused of violating international humanitarian law – whether by an individual, group, country or observer – countries are obligated to investigate. The U.N. Security Council, a group of 15 countries at the U.N. charged to maintain international peace and security, may also impose sanctions – like a travel ban or an arms embargo – as an incentive for warring parties to comply with the rules of war.
Enforcing the rules can be difficult. For example, the five veto-holding permanent members of the Security Council – the U.S., China, Russia, the U.K. and France – must vote unanimously to pursue a resolution that might call for an investigation, refer a case to a court for trial, threaten sanctions or propose another motion. But often one or several of these countries has a vested interest in the conflict in question.
Purposes of the rules of war
The idea that there is a right to war concerns, on the one hand, the jus ad bellum, the right to make war or to enter war, assuming a motive such as to defend oneself from a threat or danger, presupposes a declaration of war that warns the adversary: war is a loyal act, and on the other hand, jus in bello, the law of war, the way of making war, which involves behaving as soldiers invested with a mission for which all violence is not allowed. In any case, the very idea of a right to war is based on an idea of war that can be defined as an armed conflict, limited in space, limited in time, and by its objectives.
War begins with a declaration (of war), ends with a treaty (of peace) or surrender agreement, an act of sharing, etc. It has often been commented that creating laws for something as inherently lawless as war seems like a lesson in absurdity. But based on the adherence to what amounted to customary international law by warring parties through the ages, it was believed that codifying rules of war would be beneficial. Rules of war are intended to mitigate the hardships of war by:
- Protect those who are not fighting, such as civilians, medical personnel or aid workers
- Protect those who are no longer able to fight, like an injured soldier or a prisoner
- Prohibit targeting civilians. Doing so is a war crime
- Recognize the right of civilians to be protected from the dangers of war and receive the help they need. Every possible care must be taken to avoid harming them or their houses, or destroying their means of survival, such as water sources, crops, livestock, etc.
- Mandate that the sick and wounded have a right to be cared for, regardless of whose side they are on
- Specify that medical workers, medical vehicles and hospitals dedicated to humanitarian work can not be attacked
- Prohibit torture and degrading treatment of prisoners
- Specify that detainees must receive food and water and be allowed to communicate with their loved ones
- Limit the weapons and tactics that can be used in war, to avoid unnecessary suffering
- Explicitly forbid rape or other forms of sexual violence in the context of armed conflict
Principles of the rules of war
Military necessity, along with distinction, proportionality, humanity (sometimes called unnecessary suffering), and honor (sometimes called chivalry) are the five most commonly cited principles of international humanitarian law governing the legal use of force in an armed conflict.
a. Military necessity
Military necessity is governed by several constraints: an attack or action must be intended to help in the defeat of the enemy; it must be an attack on a legitimate military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.
Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and civilians.
Proportionality is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must make sure that the harm caused to civilians or civilian property is not excessive in relation to the concrete and direct military advantage expected by an attack on a legitimate military objective.
This principle is based in the Hague Conventions restrictions against using arms, projectiles, or materials calculated to cause suffering or injury manifestly disproportionate to the military advantage realized by the use of the weapon for legitimate military purposes. In some countries, like the United States, weapons are reviewed prior to their use in combat to determine if they comply with the law of war and are not designed to cause unnecessary suffering when used in their intended manner. This principle also prohibits using an otherwise lawful weapon in a manner that causes unnecessary suffering.
Honor is a principle that demands a certain amount of fairness and mutual respect between adversaries. Parties to a conflict must accept that their right to adopt means of injuring each other is not unlimited, they must refrain from taking advantage of the adversary’s adherence to the law by falsely claiming the law’s protections, and they must recognize that they are members of a common profession that fights not out of personal hostility but on behalf of their respective States.
Applicability of the rules of war
The rules of war are binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces. Parties are bound by the laws of war to the extent that such compliance does not interfere with achieving legitimate military goals. For example, they are obliged to make every effort to avoid damaging people and property not involved in combat or the war effort, but they are not guilty of a war crime if a bomb mistakenly or incidentally hits a residential area.
By the same token, combatants that intentionally use protected people or property as human shields or camouflage are guilty of violations of the laws of war and are responsible for damage to those that should be protected. Moreover, the rules of war imposes the prohibition of total war: international law does not authorize total war which implies the rejection of any rule, of any principle of conduct, because it is the very negation of the law.
Rules of war
The rules of war are part of the Geneva Convention and they first were established in the 19th century. The rules of war require that belligerents refrain from employing violence that is not reasonably necessary for military purposes and that belligerents conduct hostilities with regard for the principles of humanity and chivalry. However, because the rules of war are based on consensus, the content and interpretation of such laws are extensive, contested, and ever-changing.
1. Declaration of war
Hostilities should be preceded by a reasoned declaration of war or by an ultimatum with a conditional declaration of war.
2. No targeting civilians
Intentionally targeting civilians, buildings such as schools or houses and infrastructure like water sources or sanitation facilities is a war crime. Killing or injuring a person who has surrendered or is no longer able to fight is also prohibited, as is punishing someone for an act that another person, even a family member, has committed. Attacks should only be directed at military objectives, and military targets such as bases and stockpiles should not be placed in or near populated areas.
Every possible care must be taken to avoid harming civilians or destroying things essential for their survival. They have a right to receive the help they need. If the expected incidental civilian damage of an attack is excessive and disproportionate to the anticipated military gain, then the attack legally cannot be carried out. If their property, or anything else they have, is destroyed during conflict then those civilians should be compensated.
If civilians are injured or killed, then the army that did that should also compensate the family. These are known as condolence payments. There is one caveat: a civilian structures, for example a school, may become a legitimate target if it is being used for specific military operations – as a base to launch attacks, for example, or a weapons storehouse.
3. No torture or inhumane treatment of detainees
Torture and other forms of cruel, degrading or ill treatment are expressly prohibited, whatever their past. The lives, rights and dignity of detainees should be preserved. They must be given food and water, protected from violence and allowed to communicate with their families. There are no exceptions to this rule, even when torture might elicit lifesaving information. Prisoners of war who refuse to answer quetions may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
4. No attacking hospitals and aid workers
Rules of war prohibit attacking doctors, ambulances or hospital ships displaying a Red Cross, a Red Crescent, Magen David Adom, The Red Crystal, or other emblem related to the International Red Cross and Red Crescent Movement. It is also prohibited to fire at a person or vehicle bearing a white flag, since that indicates an intent to surrender or a desire to communicate. In either case, people protected by the Red Cross/Crescent/Star or white flag are expected to maintain neutrality, and may not engage in warlike acts.
In fact, engaging in war activities under a protected symbol is itself a violation of the laws of war known as perfidy. Failure to follow these requirements can result in the loss of protected status and make the individual violating the requirements a lawful target. The wounded and sick always have a right to be cared for, regardless of which side of the conflict they’re on.
Medical and aid workers who are on duty in these areas make an effort to be neutral and serve both sides of the conflict. They must, therefore, be protected by all warring parties and allowed access to collect and care for the wounded and sick. But the rules of law do grant an exception for hospitals as well as other civilian structures. If a hospital is being used for specific military operations, it may become a legitimate target.
5. Provide safe passage for civilians to flee
Parties to a conflict must take all reasonable steps to evacuate civilians from areas where there is fighting. In the heat of conflict, such steps can take the form of advanced warnings or the creation of “safe corridors” for civilians to leave a besieged city and for humanitarian workers to deliver aid and services. Civilians must never be blocked from fleeing.
6. Provide access to humanitarian organizations
Civilians and militants who are no longer fighting in the conflict have a right to receive the help they need, whether it’s medical care, food, water or shelter. This means that restricting the delivery of humanitarian aid – through naval and air blockades, closing ports or confiscating supplies – is prohibited. In fact, deliberately causing starvation and hunger is a war crime.
7. No unnecessary or excessive loss and suffering
The tactics and weapons used in war must be proportionate and necessary to achieve a definitive military objective. The use of weapons that are “by nature indiscriminate,” according to the Geneva Conventions, is prohibited. For example, the use of land mines, while not banned, is limited because they can indiscriminately kill and maim both combatants and civilians. Militaries should not use chemical weapons, biological weapons, dirty bombs, salted bombs, or hollow-point bullets or poisoned bullets.
8. People parachuting from an aircraft in distress
Rules of war prohibit attacking people parachuting from an aircraft in distress regardless of what territory they are over. Once they land in territory controlled by the enemy, they must be given an opportunity to surrender before being attacked unless it is apparent that they are engaging in a hostile act or attempting to escape.
This prohibition does not apply to the dropping of airborne troops, special forces, commandos, spies, saboteurs, liaison officers, and intelligence agents. Thus, such personnel descending by parachutes are legitimate targets and, therefore, may be attacked, even if their aircraft is in distress.
9. Lawful conduct of belligerent actors
Rules of war regarding conduct during war (jus in bello), provide that it is unlawful for belligerents to engage in combat without meeting certain requirements. Lawful combatants are required;
- That of being commanded by a person responsible for his subordinates
- That of having a fixed distinctive sign recognizable at a distance
- That of carrying arms openly
- That of conducting their operations in accordance with the laws and customs of war
Impersonating enemy combatants by wearing the enemy’s uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages. Combatants also must be commanded by a responsible officer. That is, a commander can be held liable in a court of law for the improper actions of their subordinates. There is an exception to this if the war came on so suddenly that there was no time to organize a resistance, e.g. as a result of a foreign occupation.
10. Limits to warfare
Advances in weapons technology has meant that the rules of war have also had to adapt. Because some weapons and methods of warfare don’t distinguish between fighters and civilians, limits on their use have been agreed. In the future, wars may be fought with fully autonomous robots. But will such robots ever have the ability to distinguish between a military target and someone who must never be attacked? No matter how sophisticated weapons become it is essential that they are in line with the rules of war.
11. Protection of cultural properties and historical sites
Militaries are also told to protect cultural properties and historical sites. This might include monuments, certain buildings, places of science, but also just books, works or art, many things that have importance within a culture or history of a state.
Remedies for violations
During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal. After a conflict ends, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes through process of law. Also, nations that signed the Geneva Conventions are required to search for, then try and punish, anyone who has committed or ordered certain grave breaches of the laws of war.
Combatants who break specific provisions of the laws of war are termed unlawful combatants. Unlawful combatants who have been captured may lose the status and protections that would otherwise be afforded to them as prisoners of war, but only after a competent tribunal has determined that they are not eligible for Prisoners Of War (POW) status.
At that point, an unlawful combatant may be interrogated, tried, imprisoned, and even executed for their violation of the laws of war pursuant to the domestic law of their captor, but they are still entitled to certain additional protections, including that they be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial.