JUST WAR AND THE WAR IN IRAQ

Lesson 1: The Nature of War and Peace (October 7, 1990)

Background Material: The Law of Land Warfare

The law of warfare comes from two sources: lawmaking treaties (mainly the Hague Convention of 1907 and various Geneva Conventions) and recognized customs ("the obligations which result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."). Both are binding on those engaging in war, and violations of these laws are "war crimes."

Hostilities

• Hostilities must not commence without a previous and explicit warning, usually in the form of a declaration of war.
• It is unlawful to kill or wound an enemy who has laid down his arms and surrendered.
• It is unlawful to assassinate individuals who belong to the hostile nation or army. (For soldiers, this means acts such as putting a "price on their heads.")
• It is unlawful to employ arms, projectiles, or materials calculated to cause unnecessary suffering. It is especially forbidden to employ poison or poisoned weapons. (It is not clear whether this applies to biological agents or toxic or nontoxic gases.) The attack or bombardment of cities or buildings which are "undefended" is prohibited. (It is often a tough call to determine if an area is "defended," because the definition includes cities surrounded by detached defense positions.) Where bombardment is authorized, and noncombatants are present, it must be preceded by warning. All reasonable means must be taken to protect buildings dedicated to religion, art, science, and historic monuments, hospitals, and places where the sick and wounded are collected.
• Pillage of towns is prohibited.
• It is prohibited to falsely use any insignia, to dress in the uniform of the enemy, and to deliberately conceal one's status (such as by wearing civilian clothing to conceal one's status as a combatant).

Prisoners of War:

• Captured medical personnel and chaplains are not considered POWs, and must be permitted to continue ministering to POWs.
• Spies are not entitled to be treated as POWs.
• POWs must be treated humanely. They may not be subjected to reprisals, violence, intimidation, insults, and public curiosity. They are entitled to respect for their persons and their honor. They must be treated equally without regard to race, nationality, religious belief, political opinion, or any other distinction.
• POWs are obliged to answer only as to their name, rank, date of birth, and serial number. No physical or mental torture, or any other form of mental coercion, may be inflicted on POWs to secure from them any information whatsoever.
• POWs may not be held in close confinement, and must be housed under conditions affording every guarantee of hygiene and healthfulness. They may not be interred in areas where they are subject to the fire of the combat zone, nor may their presence be used to render certain points or areas immune from military operations.
• POWs must be given enough food to keep them in good health and prevent loss of weight. Adequate clothing must be provided.
• POWs must be given adequate medical attention.
• POWs may be forced to work, but subject to specified humane working conditions and not in any endeavor of military significance. They must be paid a fair wage for the work done.
• POWs are entitled to hearings and due process on matters of discipline and punishment. Repeated punishment for the same act and collective punishment for the acts of others are prohibited. Punishment may not be more severe than that applicable to members of the authority's armed services.

Wounded and Sick

• After engagement, a search must be done for the wounded and the sick. These persons must be protected from ill-treatment and pillage. They must be treated humanely and protected from violence.
• "As a compliment to Switzerland," the red cross emblem (reversing Switzerland's colors), is the insignia of medical services. Medical transports, facilities, and personnel displaying the emblem are entitled to special protection.

Protected Persons (civilians, nationals of third countries, and other persons who find themselves in the hands of a belligerent party of which they are not nationals):

• Protected persons are entitled to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. Women especially are to be protected against insults against their honor, against rape and forced prostitution, and all forms of indecent assault.
• Protected persons cannot be used to render any area immune from military operation.
• No physical or mental coercion may be exercised against protected persons to obtain information from them or from third persons.
• Corporal punishment, torture, and experimentation are prohibited. No person can be punished for the acts of others, and reprisals and collective punishments are prohibited.
• The taking of hostages is prohibited.
• Protected persons may be interned, but only in safe areas, under conditions conducive to health and good hygiene, with adequate medical and religious facilities and care, with adequate food and clothing, and with provisions for intellectual and recreational pursuits.
• Protected persons may not be used as workers unless they so desire.

Remedies for Violation

• Belligerents are liable for the acts of their armed forces.
• Reprisals may be authorized against enemy forces who are still engaged in hostilities. "Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from unlawful practices."
• "The acts resorted to by way of reprisal need not conform to those complained of by the injured party, but should not be excessive or exceed the degree of violence committed by the enemy."
• Those who commit violations of the laws of war may be tried by military courts and punished in accordance with military law. The death penalty may be imposed for grave breaches.
• "Grave breaches" are: wilful killing, torture or inhumane treatment, extensive destruction of property not justified by military necessity, and gross violations of the rights of POWs or protected persons.
• The following are not defenses to a charge of having committed a war crime:
  • That the person was merely following the order of a superior authority, unless the person charged did not know and reasonably could not have known that the ordered act was unlawful. (At the same time, the court will consider that members of the armed forces are duty bound to obey the lawful military orders of their superiors, and cannot be expected, under conditions of war discipline, to weigh scrupulously the legal merits of orders received; that certain rules of war may be controversial; and that certain unlawful acts may be authorized as acts of reprisal.)
  • That the accused was a government official.
  • That the act was lawful under the accused's domestic law.

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11/11/2001