THE LAW OF WAR

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INTRODUCTION

Law of war is one of the main elements of International Law; it is vital and indispensable in upholding the humanity and humanitarian norms during the time of war and crisis. It is of fundamental importance in regulating the armed conflicts, war crimes, the hostiles involved, protection mechanism for public etc. it is defined as a part of international law that regulates the conduct of hostilities and the protection of victims of armed conflict in both international and non-international armed conflict and occupation, and that prescribes the rights and duties of neutral, non-belligerent, and belligerent states.[1] It focuses on armed conflicts and the effects of which upon the related subjects. Law of war does not fall under a domestic territorial legal framework rather it defines the principles, rules and regulations to be followed by every nation involving in armed conflict. It often rests upon defining the conduct of individuals, nations and other agents involved in armed conflicts.

HISTORICAL BACKGROUND

The concept of law of war was not prevalent for centuries, though it was inscribed as treatise in ancient scriptures. The biblical words, Surah in Quran, treatise of Manu, notes of various scholars etc. had details of law of war and regarding prisoners of war, yet it was not pragmatic. In olden times humanity was considered a myth, various historical battles are won sacrificing humanity. Inscriptions in papers where not implemented up until 18th century when Professor Francis Lieber stressed the importance of humanitarian norms during armed conflicts specified in his draft. He promulgated the need for protection of women and other weaker section at times of war, practices of humane treatment for prisoners of war, and providing medical facilities to the hostiles and other affected people.[2] Consequently various conferences and conventions were held at the outset of the need for laws and rules for armed conflict. Below are the timeline of events.

  1. 1863 International conference meeting in Geneva – resolutions on providing medical services
  2. 1864 Geneva Conferences - Amelioration of the Condition of the Wounded in Armies in the Field
  3. 1868 Additional Articles relating to the Condition of the Wounded in War.
  4. 1874 International conference on Laws and Customs of War for humane warfare but was not ratified
  5. 1899 Convention (II) at International Peace Conference in The Hague - Laws and Customs of War on Land
  6. 1906 International conference met in Geneva – updating the 1864 Convention and the 1868 Additional Articles.
  7. 1907 Second International Peace Conference –redrafted Laws and Customs of War
  8. 1929 Geneva Convention relative to the Treatment of Prisoners of War
  9. 1949 Geneva Convention relative to the Treatment of Prisoners of War
  10. 1965, XXVIII resolution of the XXth International Conference of the Red Cross
  11. 1972 International conference – drafting convention related to bacteriological weapons
  12. 1980 Diplomatic conference in Geneva - Prohibitions or Restrictions on the Use of Certain Conventional Weapons
  13. 1993 a Diplomatic Conference in Paris - Prohibition of the Development, Production and Stockpiling of Chemical Weapons

PRINCIPLES OF LAW OF WAR

Military necessity

This principle demands that, during warfare the attack must only be based of military objective, for the purpose of humane warfare it is highly prohibited to deviate from the military objective. The attack on any object, nature or location should be for the purpose of military advantages without injuring the unnecessary targets.

Unnecessary suffering

Usage of weapons or any ammunition should not cause damage or suffering to civilians unnecessary. A single shot of weapon should no put the entire humanity at stake, the principle of unnecessary suffering wheels from an indiscriminate warfare strategy.

Distinction

It demands for the combatants of the armed forces to distinguish themselves from non-combatants or civilian. This principle completely prohibits the in-discriminatory attack on civilian which does not possess any military objective.

Proportionality;

This principle signifies the disproportionate usage of force during armed conflict. Causing of irrational suffering to the civilians and inflicting loss just for the advantage of military and warfare is condemned. It is against the principle of law of war and is prohibited extensively.

Chivalry

It is otherwise called as honor; this principle signifies that, the parties to the armed conflict should honor the fact of either party adhering to the laws and rules of warfare. It unambiguously signifies the fairness in usage of force against the parties in the war field.[3]

BASIC RULES OF LAW OF WAR

  1. Restraining from targeting the civilian population for military objective
  2. Prevent unnecessary loss and sufferings
  3. Provide utmost importance in protecting the basic rights of civilians
  4. Providing safe passage for the civilians to flee from the war zone
  5. Avoid in-discriminatory usage of weapons
  6. Protection of women and children
  7. Avoid inhumane treatments to prisoners of war
  8. Protection and safeguarding of injured soldiers
  9. Allowing humanitarian workers to provide help
  10. Should not disturb or disrupt the hospitals and medical facilities
  11. Provide the civilians and injured person access to basic amenities and medical facilities
  12. Refrain from conducting religious or cultural convictions or any kind of physical or sexual violence[4]

CURRENT STATUS OF LAW OF WAR

With a well-defined International Humanitarian Law, and various other Geneva Conventions and protocols the present condition of law of war is well advocated in the scene of war field. The timely amendments of laws of war seeks to ensure that, no battlefield be a law free zone. Yet the terror remains on the battlefield, the increased amount of terrorists activities challenge the entire realm of law of war. It is highly recommended that the Article 3 of the 1949 Geneva Conventions which states that a minimum yardstick of humane treatment protections for all persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause should be followed as a basic principle of rule of law. Importance of humanitarian agenda must be advocated as the human conflicts are steadily increasing.

REFERENCE