Law of War 101

The Basics

Henry Dunant (via ICRC)

The notion of law applying to war does not make sense to some people.  If a situation has escalated to the point that warfare has erupted, some would argue any means necessary to survive and prevail are  acceptable.  War is hell and the law of war has evolved over time to reduce the hellishness.

The roots of the law of war extend over centuries of violent conflict on battlefields around the world.

  • The Old Testament sought to limit collateral damage during warfare by commanding that fruit bearing trees not be destroyed during a siege.
  • When British troops mistreated American soldiers, General George Washington directed his army not to retaliate and ordered them to treat British prisoners with humanity.
  • President Abraham Lincoln signed an ordered on the conduct required of his Union Forces known as the Lieber Code in the midst of the Civil War.
  • Henry Dunant won the first Nobel Peace Prize in 1901 after his account of the brutal Battle of Solferino led to the creation of the International Committee of the Red Cross, the world’s leading humanitarian organization.

Each step in the law of war’s evolution was intended to limit the effects of war by mitigating its hardships and facilitating the restoration of peace when the hostilities come to an end.

There are two distinct parts to the law of war, one moral or philosophical and one practical.

The first, Jus ad Bellum, addresses the question of  when the choice to go to war is permitted. Today, the Charter of the United Nations limits the legitimate use of armed force to self-defense in response to an attack or a threatened attacked.  It is the question of when a fight is permitted.

The second, Jus en Bello, governs conduct during an armed conflict, which is of more direct concern to journalists in war zones.  It is the question of how we can fight when war occurs.

The law of war, the Geneva Conventions, and international humanitarian law are three terms used interchangeably to refer to the rules that apply on and around the battlefield.  The term “law of war” is what I will use here.

Before looking at some specific rules under the law of war, it is important to note that the extent of the rules that apply depend upon how the nature of the armed conflict is classified.

A civil war or insurrection within a country is a non-international armed conflict (NIAC, pronounced “nigh-yak”), which is governed in most part by domestic law.  The United States considered the invasion of Afghanistan a NIAC since there was no functioning Afghan government.  In other words, there was no legitimate state party in Afghanistan to make the war an international (involving two or more state parties in conflict) armed conflict. Some international obligations under the law of war apply in a NIAC, but generally those are the very basic provisions of Common Article 3 of the Geneva Conventions, which establish only base-level standards of conduct.  A serious violation of those rules could be treated as a war crime subject to prosecution in an international tribunal or as a crime in a domestic court.

Violations are war crimes subject to prosecution in an international tribunal if there is no domestic criminal process available. The Nuremberg trials following World War II are the best known example.

The potential to bring war crimes charges against Syrian President Bashar Assad as a result of the Syrian government crackdown on Syrian protesters is an example.  Conflicts between nations – World War II, the Vietnam War or the Iraq War, for instance – are international armed conflicts (conflicts between two or more state parties) subject to the full scope of the law of war.  Violations are war crimes subject to prosecution in an international tribunal if there is no domestic criminal process available.  The Nuremberg trials following World War II are the best known example.

Next: The Big 3 Laws of the Law of War