Useful Notes: The Laws and Customs of War
"The (Third) Geneva Convention, Geneva Convention Relative to the Treatment of Prisoners of War (of 12 August 1949), Article 4.A(2), defines a Lawful Combatant as "(a) that of being commanded by a person responsible for his subordinates; (b) that of having fixed distinctive insignia recognizable at a distance; (c) that of carrying arms openly; and (d) that of conducting their operations in accordance with the laws and customs of war."It is untrue that all is fair in love and war. Especially in war. There are a considerable number of treaties governing the conduct of war. War Is Hell, but now even this hell is developing a lot of standards. In fact, this is considerably Older Than Feudalism, as even nonliterate, stone-age peoples have usually had customs and taboos strictly limiting what may be done in war, and Hugo Grotius' classic On the Laws of War and Peace (1625) cites back to ancient Greek and Roman sources for many of its rules. Thus, war has usually been governed by some sort of law or custom throughout history, but they differ in various times and places. As noted below, the Geneva Conventions recognize the right of a POW to attempt to escape. During the Napoleonic Wars, as an example, if a captured officer swore an oath to his captors that he would return home and no longer participate in the war until its resolution, he was honour-bound to keep his word. Many imperialist victories throughout history can be attributed to two different sets of customs regarding war coming to a head. Note that this article is written primarily from an American perspective - while the international laws of war are just that, several parts of the article reference policies implemented in the USA, but not necessarily elsewhere. jacked dum-dums have a disturbing tendency to leave the jacket in the barrel of the gun, nevermind the fact that they don't expand that reliably) dum-dums are usually used to show how bad someone is. Or that setting pre-dates the invention of hollow points. Named after an arms factory in India, by the way. In 1899, the Hague Convention stipulated that bullets must not be designed to expand or flatten within the body, causing grievous harm. This has been a contentious point, as modern rifle calibers often yaw or tumble within tissue due to their velocity and shape, and this behavior has been encouraged with both 5.56x45mm NATO and 5.45x39 rounds by selectively weakening the full metal jacket in certain portions or the addition of an air pocket. Although the example points out the dum dum rounds as the specific example, the laws of war generally state that the use of altered projectiles is not permitted, including the use of glass projectiles.
HollowpointsThese bullets, which expand in a person's body, are prohibited in formal warfare, but allowed in domestic law enforcement and actually required in some jurisdictions for hunting. Their downsides are that they have poor performance against armor and barriers as well as sometimes not expanding correctly. In addition, automatic or semi-automatic weapons capable of reliably feeding hollowpoints are a relatively recent invention. Their upsides is their relatively low chance of over-penetration (and hitting something behind your target) and of course increased stopping effectiveness. Match grade ammunition (such as Sierra Match-King) often contains a thin hollow nose for ballistics reasons, but since its wound profile is not noticeably different from a normal FMJ wound, the U.S. military has authorized its use. The reason behind the ban on both Hollowpoints and Dum-Dums is the idea that military weapons should serve a military purpose, and no more. That is, follow the idea of Least Suffering - a weapon should cause the minimum amount of damage to incapacitate a person, and no more, or kill someone quickly, rather than maim. Intentionally maiming an opponent serves no moral purpose that a "normal" wound wouldn't, and therefore is excessive, and banned.
Tear GasTechnically not illegal, but strongly discouraged for fear of reprisal with deadly chemical weapons. Oddly enough, use of tear gas is banned in normal warfare but legal for use by civilian law enforcement. It's also legal to tear gas your own troops as part of their training. Citing how common Urban Warfare is in the modern War on Terror, many U.S. service-members have begun to criticize the arbitrary ban on tear gas, as it would actually save lives lost on both sides in deadly house-to-house fighting by forcing the occupants out into the open where they can be sorted out non-lethally.
CombatantsOnly those who actually fight are combatants. Civilians are not legitimate targets. Furthermore, combatants who have laid down their arms or become hors de combat, including those who are leaving sinking ships or parachuting from planes, must be treated humanely. It is fairly serious (and common) war crime for combatants to deliberately disguise themselves as noncombatants or attempt to hide among noncombatants. Playing Possum with the intent to attack (as opposed to doing so with the intent to escape a hopeless battlefield situation) is a war crime because it discourages people from obeying this law and custom. While civilians are allowed by the Geneva Conventions to take up arms as militia against an invading army, they must still abide by the Geneva Conventions in their own behavior, be "carrying arms openly", and do their best to have "a fixed distinctive sign recognizable at a distance" in order to still enjoy the protection of the Geneva Conventions for themselves. The intent of this particular section of the Geneva Conventions is to make the distinction between 'combatant' and 'noncombatant' immediately obvious at a distance; to try and minimize noncombatant casualties by letting the enemy be able to know which people are fighting him and which ones are just bystanders. The 'illegal combatant' distinction generally comes into play when that distinction is deliberately being abused. There are several quasi-military jobs that were taken into uniformed services to give protection under the Geneva convention to those workers. Otherwise they were unlawful combatants and possibly spies. The Public Health and NOAA Corps are American examples of battlefield surveyors and ambulance personnel put in a uniform to give them protection on a battlefield. Also note that medics and similar positions are permitted to carry small arms solely for self-defense (though, many chose not to). In particular today, when medics are integrated into the unit as a soldier first, medic second, most do not wear a Red Cross/Red Crescent symbol and do carry weapons. Also, even specialized actual medics are permitted to carry and use weapons against those who would attack those under their care; e.g. if the enemy is harming the wounded (itself a War Crime), medics are entirely justified in responding with lethal force. In these cases, they are considered lawful combatants, and are not war criminals for carrying weaponry. See below for other cases where medics are treated differently. It is worth noting that the Convention only names Lawful Combatants and Noncombatants directly. Unlawful Combatants are a US invention, based only partly on the Geneva Convention.
Persons parachuting from disabled aircraftUnder Article 42 of the First Additional Protocol to the Geneva Conventions (1977), aircrews parachuting from disabled aircraft are not to be fired upon, as they are already out of the fight and now completely helpless to defend themselves. In the European Theatre during World War II, any pilot who intentionally fired at parachuting aircrews in sight of the enemy effectively signed their own death warrant. Any enemy fighter pilots in the area would ditch all other priorities just to take the son of a bitch down. The prohibition of shooting aircrews parachuting from disabled aircraft does not apply to the dropping of paratroopers who may be fired upon during their descent, whether their aircraft is in distress or not. Belligerents must distinguish between those who are bound upon hostile missions (such as paratroopers entering into combat areas to fight enemy forces and/or destroying enemy supply lines) and those who are not (such as aircrews parachuting from disabled aircraft as they are out of combat and are not descending for hostile purposes).
Name, rank and number- Prisoners Of WarThere are actually four Geneva Conventions- number three being the relevant one for POWs.
Being taken prisonerIf a group of soldiers decides that they want to surrender, they should make their intentions clear. This usually entails waving a white flag (or something big and white) or raising your hands. (Faking it is a war crime in itself.) Black flags are also used for this purpose, but are more rare. This caused some awkwardness when Iraqis tried to surrender to Americans who were unaware of the custom. Once the other side captures you, they are allowed to search you and restrain you. They can confiscate your pack animals (these are still used in less developed parts of the world where motorized transportation has problems, particularly in rugged/mountainous terrain), weaponry and any military documents. However, a prisoner must be permitted to retain his personal protective equipment, such as helmets and gas masks. And, once a prisoner has been captured, his health, safety, and well-being is the responsibility of his captors. Any unit of any armed force in an untenable situation may surrender, from an individual soldier to a platoon to a whole division to the entire armed forces of a state (at which point that state is deemed to have ended its participation in the conflict). A surrender can be under conditions or unconditional, the latter meaning that only international law applies. The Allies in World War Two demanded- and got - an unconditional surrender from Germany.note It has been argued that the end of the war in Europe is also a case of debellatio, completely destroying a hostile state, as Nazi Germany ceased to exist. The only things that you are obliged to tell the people capturing you are your name, rank, serial (or service) number and date of birth. The US permits provision of relevant health and welfare information too (e. g. blood-type, allergies, that kind of thing). Telling more may result in a court-martial if and when you get home. Nevertheless, your captors are permitted to offer positive inducements—better food/living conditions, less/easier work, money—for providing intelligence. They are not allowed to take you away for interrogation; you must approach them (which means you run the risk of more immediate vigilante punishment from your comrades as well as penalties back home). Negative inducements are strictly prohibited (see below). Also, there is some confusion (and a bit of a grey area) as to when surrender is allowed. Most nations consider that the attacker is given some discretion at this point, as to when a surrender is valid. For example, if a soldier is actively firing a weapon at an enemy, when another enemy walks up behind them and does a Click Hello. Even if the soldier turns around with his hands up, it's at the capturing enemy's discretion as to whether or not to accept this as valid. Most nations would consider the capturing enemy fully justified in shooting the soldier, even though they were surrendering, since they were actively engaged in fighting up until the instant where they perceived they were compromised. That is, most nations require that surrendering forces do so before the very last instant, where it's perceived as an attempt to inflict maximum damage on the capturers while avoid the consequences.
If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.Once taken to a camp (these have to be designated in a way that aircraft can see them and should be well away from the front line), prisoners are to be well treated. (How well they were treated made headlines when the fate of Vietnam War prisoners became common knowledge, but the Vietnamese could just point out their own civilian population endured similar misery in their everyday life back then.) They are allowed to write letters home and receive them—although the captors are allowed to censor these communications, so long as it is done reasonably quickly—The Red Cross can send them parcels with food and religious freedom is allowed. You also are allowed pay in line with your rank.
— Article IV of the Code of the U.S Fighting Force
— Article IV of the Code of the U.S Fighting Force
Being forced to workPrisoners of war can be compelled to work, but only in non-military capacities, which includes a blanket ban on any work involving chemical production. Farm work is a common one for this. You cannot be forced to do dangerous or unhealthy work. Officers and NCOs cannot be compelled to work, but may agree to do so if they wish. Medical personnel and chaplains must be permitted to work in those roles, and must not be forced to perform any other. However, medics and chaplains can be put to the care of prisoners other than those from the nation they represent if necessary. They also remain bound by the ethical requirements of their professions, meaning that they may need to minister to the enemy in an emergency.
The use of torture on legitimate prisoners of war (actually, on anyone) is absolutely prohibited.However, realizing that the people it fights have frequently not adhered to Geneva (as in World War II and the Vietnam War), the United States military, plus others, trains its aircrew in resistance techniques, including "waterboarding" them. The "legitimate" in the header above refers to the fact that under the original Geneva Conventions, there are protections only for lawful combatants and noncombatants, not "unlawful combatants". However, Article 75 of the First Additional Protocol to the Geneva Conventions (1977) contains a prohibition of torture as one of the basic minimum protections applicable to everyone, even if they are eligible for protection under none of the other Geneva Conventions. The US has never ratified the First Additional Protocol, but did sign and ratify the UN Convention Against Torture. The exact working definition of torture is... contentious.
Medical ExperimentsThe use of prisoners for medical experiments is also prohibited, unless it is for the prisoner's clear well being.
EscapingPrisoners are permitted to escape (many belligerent forces see it as a duty to do so) and are not to be executed if they attempt to do so. Prisoners can still be shot while attempting to escape, though they must be warned first. Medical and religious personnel are exempt from the requirement to attempt to escape, as their specialties are more valuable to the remaining prisoners than the harm done by their escape.
Medics and chaplainsMedical personnel and chaplains, being noncombatants, are not technically prisoners of war, though they must receive as good treatment as the prisoners. Furthermore, they must be permitted to carry out their ministrations. They can be required to minister to prisoners from other nationalities, however, and are still bound by professional and ethical obligations that may compel them to minister to the enemy in an emergency.
Lawful CombatantsGeneva III in its 1949 revision, states the requirements for someone to be considered eligible to be a POW:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance [a uniform or something that allows identification];
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war. Mercenaries, even if they are uniformed regular units conducting operations in accordance with the laws and customs of war, are still specifically not covered by the Geneva Conventions as specified by Article 47 of the First Additional Protocol to the Geneva Conventions (1977). Terrorists are not covered by the Geneva Conventions - they fail eligibility under Geneva III because of their failure to meet the standards listed abovenote , and they are not covered as civilians under Geneva IV because Geneva IV does not apply to individuals taking a direct part in ongoing hostilities, only to noncombatants and similar personnel. In addition, the usual tactics of terrorists, most especially random attacks against noncombatants, are themselves acts specifically proscribed by Geneva IV. However, article 75 of the First Additional Protocol establishes certain very basic minimum protections that apply to everyone regardless of whatever categories of eligibility they may or may not qualify for, including terrorists/unlawful combatants. Mercenaries that are an integral part of a given State's military system (Gurkhas, Foreign Legionaires, etc.) are not considered mercenaries for this purpose even though they are in fact soldiering for a foreign state, which is a common definition of "mercenary".note A captured Legionnaire would be covered by the Convention. The 1949 version also covers spontaneous resistance movements, even not in uniform, if their conduct abides by the laws and customs of war. However, they are not exempt from the four basic requirements at the top of this subheading and most classic resistance movements deliberately avoid using uniforms or identifying symbols, thus forfeiting their protection and leaving them liable to be shot as spies or saboteurs. Many resistance actions, such as sabotage or bombing, also fail to be 'carrying arms openly'. A resistance movement that did fulfill all the requirements, even just to the point of using colored armbands during their overt attacks, should still qualify.
No QuarterIt is a war crime to state that soldiers cannot surrender or not to take prisoners. The most famous example of this was the 1942 Commando Order, a secret order issued by Nazi leader Adolf Hitler, which stated that enemy commandos captured by German forces were to be executed immediately without trial, even if they wear the uniforms of their own military. As a result, it contributed to the number of deaths of Allied commandos who were carrying out military operations behind German lines. After World War II, German officers who carried out the 1942 Commando Order were found guilty of war crimes.
Showing Your True ColoursDespite a more general prohibition on dressing as the enemy these days, this is still a permissible action. A ship is allowed to fly the flags of an opposing or neutral nation (although protected symbols are banned) as it approaches an enemy vessel or the coast. However, before it engages the enemy, it has to lower the colours it is flying and reveal its true colours. Witness the Q-Ships of World War One and World War II, converted merchant ships loaded with things which float like cork, balsa and wooden coffins to render them nearly unsinkable- and also large artillery hidden by drop-down panels. When an enemy submarine approached to close range and surfaced to attack with a deck gun, the colors were raised, and the panels were dropped. Lowering your colours (called "striking") is the naval symbol for surrendering. This is also the origin of the expression "nailing one's colours to the mast", meaning you weren't going to surrender. This is not as relevant these days- it's a lot harder to disguise a particular cruiser type than a sailing ship and naval warfare these days takes place at far longer ranges. There is a story of a British aircraft carrier pretending to be a Pakistani cruise liner on radar (by broadcasting such a registration beacon and answering hails in Urdu) in order to sneak up on some Americans during a training exercise. The USN was only alerted to the deception when the British opened fire. When they protested that the British should have announced their identity beforehand, the British argued that they had been flying the physical Pakistani flag the whole time(see the note), and raised the physical White Ensign when they launched...but of course, the USN was too far away to see them. note This applies also to ground troops, who may wear enemy uniforms as a deception but before firing upon enemy forces, they must put on proper insignia so that if they are captured, they are entitled to be treated as prisoners of war. However, as lawful combatants can still be tried for any criminal offenses they commit in the execution of their duty (rape, theft, etc.), if they are captured using enemy uniforms to gather intelligence/spread despondency or falsehoods within the ranks of the enemy behind enemy lines, they may be tried for espionage and, if found guilty, executed or otherwise punished as per the laws of the nation that has captured them.
Protected SymbolsWar is hell, but there are some things you just don't do. Many things are allowed as ruses, even the aforementioned False Flag Operations, but even in war, this doesn't fly. Certain symbols are completely OFF LIMITS unless you're using them legitimately. These especially include the Red Cross/Crescent/Crystal and the UN logo. Note that if the UN is running a military operation (e.g. The Korean War), you're allowed to use their logo on your tank ... it's when the UN doesn't give you permission and you use it that you're running afoul of Article 38. The white truce flag IS a protected symbol, too. Don't fake surrender in war; it violates Article 37 of the protocol addition to Geneva IV, "Protection against perfidy". The acts specifically proscribed are (a) the feigning of an intent to negotiate under a flag of truce or of a surrender; (b) the feigning of an incapacitation by wounds or sickness; (c) the feigning of civilian, non-combatant status; and (d) the feigning of protected status by the use of signs, emblems or uniforms of neutral parties. Note that the use of enemy uniforms is not prohibited, and is a legitimate ruse of war as far as the Geneva Conventions are concerned - although it can still get you shot for espionage, of course.
It is not acceptable to say "I was just following orders".
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.If a member of the armed forces followed an order to commit an act which clearly constitutes a war crime under the laws of war, he or she is just as much responsible as their superiors who gave an order for him or her to do so. During the Nuremberg Trials, many Nazi officers unsuccessfully used the "I was just following orders" defense—afterwards known as the Nuremberg Defense—in order to convince the Allied judges that they were not held responsible for violating the laws of war pursuant to an order issued by their superior authority and were nonetheless executed or punished. That said, this comes with an important caveat: the rule only applies where a real "moral choice" was provided to the member of the armed forces. If the soldier is presented with a choice of committing a war crime or being killed or tortured (or under some interpretations, imprisoned), the laws of war will excuse the soldier—after all, not everyone is cut out to be a martyr, and even if in hindsight we find the decision repulsive, we can sympathize with a person (probably a terrified young person) for deciding to follow horrific orders when the alternative is death, torture, or extreme deprivation. However, if a soldier is ordered to commit a war crime but will not face any punishment for refusing, they bear full responsibility for the act. This last is what got the Germans at Nuremberg: a German soldier could nearly always refuse to participate in the war crimes in question without any adverse consequences, and the hierarchy would just find someone else to do the job. Because the option of refusing was always there, Germans at all levels who did participate in war crimes were convicted provided the evidence was sufficient. Most military bodies now train their military personnel to follow legal orders and require them not to obey illegal orders.
— Principle IV of the Nuremberg principles.
— Principle IV of the Nuremberg principles.
EnforcementWhile actual enforcement of these laws takes place through a wide variety of mechanism (international NGO's, UN and regional bodies etc), the biggest incentive to follow these rules is The Golden Rule. If you do not follow the rules, the enemy most certainly will not. This is especially true in the case of treatment of POWs: if you mistreat enemy troops over whom you have total control, the other side will lose any compunctions about mistreating your service members that they have captive. This is one of the reason that armed forces personnel are rather keen on these rules. The history of war is replete with examples where a relatively small-scale breach of the rules regarding the killing of POWs or shot-out airmen resulted in massive retaliations by the other side. To give a pair of WW2 examples: A Japanese fighter machinegunning a bailed-out B-17 crew and killing eight of the thirteen at Bismarck Sea resulted in the US and Australians sinking the lifeboats and rafts of the convoy after it was destroyed, killing thousands of Japanese soldiers; during the Battle of the Bulge the attempted murder of a group of American prisoners by the SS caused a number of American units to refuse to accept surrenders during the course of the battle, costing hundreds of German lives.
Ceasefires, ArmisticesA ceasefire simply means a temporary cessation of hostilities, whether in one sector (for allowing prisoner exchanges, collecting of the wounded)or theater wide (usually as prelude to the cessation of the conflict as a whole) , while an armistice is the wartime equivalent of the end of the fighting stage before the final resolution, it means in essence that sides are recalling their Generals and sending in the diplomats. Ceasefires take effect at a set time after the agreement, allowing the word to get to troops in the field. In practice, people generally stop firing once they're told of the ceasefire; no-one wants to be the last to die in a war. Although, this might not be the case when it is unclear whether the ceasefire is the actual end of the war. As a ceasefire usually entails that the battlelines will remain where they are, people might attempt to use the time period to get a favourable positions. Standing orders of the Pakistan Army are that Pakistani forces will continue to jockey for favourable positions until the coming into effect of the ceasefire (although major offensives are forbidden) while the Israeli Army seems to have a policy (if not formal orders)which is similar. This is a risky proposition, the enemy might decide to simply abandon the plan. There might be a clear winner or loser at the end of an armistice; what matters is that the sides have only agreed to stop fighting until further notice. Generally speaking, an armistice is when the war has clearly ended. Usually, peace talks and a peace treaty immediately follow but the term "peace treaty" is something of a misnomer: a peace treaty is actually about restoring (or establishing) diplomatic recognition and ties, as well as settling at least some of the disputes that led to the war in the first place (generally in the victor's favor, assuming that there is one). Note that a peace treaty need not follow an armistice: countries can agree to stop fighting without agreeing to establish diplomatic ties or settle their issues. As a result, armistices can last for a very long time, during which the sides remain technically at war. Three notable long-lasting armistices exist today:
- The armistice ending the Korean War was signed in July 1953, but no peace treaty will be signed in the foreseeable future.
- The Arab-Israeli Conflict presents an interesting situation, where three wars were fought, each of which ended with an armistice. However, of the Arab states fighting these wars, only four—Egypt, Syria, Jordan, and Iraq—directly participated in all of them. So:
- Egypt and Jordan both have signed peace treaties with Israel. Armistices most recently existed between Israel and Egypt 1973-1979 and between Israel and Jordan 1973-1994.
- Syria and Iraq have not signed peace treaties, and thus have armistices but are still technically at war with Israel. Barring a sudden resolution of Israel's problems with the Palestinians, treaties seem unlikely in the immediate future.
- Lebanon's last active and official participation in a war with Israel was in 1948, with the armistice signed in 1949; however, Israel has intervened in Lebanon against non-state military forces (e.g. the Palestinian Liberation Organization and Hizballah) several times since then, most recently in 2006.
- Several other Arab states technically declared war on Israel and joined the Arab armistices, but never actually engaged in combat with the IDF. Most if not all of these countries have pledged to sign peace treaties with Israel upon the establishment of a Palestinian state, and some (including the Gulf States and Morocco) have good relations with Israel on the down-low.
- Russia and Japan never did sign a peace treaty to end World War II, both claiming ownership of a handful of islands in the Northern Pacific, and neither willing to sign until the other drops their claim. They did, however, reestablish diplomatic ties and enter into a variety of bilateral agreements, so all issues usually handled via peace treaty have simply been handled in other ways, with the exception of the border dispute.