Law of War Overview

The phrase "law of war" refers to the body of international law dealing with armed conflict. This body of law includes war-related treaties and customary rules of law followed by nations out of a sense of legal obligation. The United States Supreme Court has stated that the law of war, or the international law of armed conflict, is that part of the law of nations that sets forth the status, rights, and duties of enemy nations in the context of war. The law of war is sometimes referred to as "international humanitarian law."

Treaties

A major portion of the law of war comprises treaties, which are agreements between nations. Four 1949 Geneva Conventions, which have been ratified by 191 nations, including the United States, are crucial to the law of war. They include:

First Convention, dealing with the treatment of wounded and sick soldiers
Second Convention, dealing with the treatment of sailors
Third Convention, dealing with the treatment of prisoners of war
Fourth Convention, dealing with the treatment of civilians

Technically, the Geneva Conventions only apply to conflicts between or among the 191 nations that have ratified them. A related set of treaties, the Hague Conventions, more specifically govern the means and methods of war.

Customary Rules of Law

Customary international law is that body of rules that stems from the actual practice of nations. It develops gradually over time, and nations follow it out of a sense of legal obligation. Many treaties simply codify existing customary law. For example, in 1977 additional protocols to the Geneva Convention were created. Although the United States has not ratified these protocols, they include much customary law regarding war practices. Thus, many of the additional protocols' provisions are binding upon the United States, regardless of the fact that the United States has not ratified them.

International Armed Conflicts and Civil Wars

The law of wars is divided into two branches: (1) laws governing international armed conflicts and (2) laws governing non-international conflicts or civil wars. The civil war laws are less fully developed than those governing international conflicts.

General Protections Afforded by the Law of War

Generally, the law of war provides that prisoners of war must be treated humanely, surrendering enemies should not be killed or injured, certain cultural institutions of the enemy should be respected, defenseless cities should not be attacked, and soldiers should not pillage an enemy's property.

Enforcement of the Law of War

Although the law of war is fairly clearly established in treaties and in customary rules of law, the rules of enforcement are not so clear. The 1949 Geneva Conventions require that countries must search for alleged war criminals. Once the alleged criminals are found, a country must either try them or turn them over to another country willing to try them.

As of 2004, 94 countries have signed a treaty to establish an international criminal court. The United States is not a party to the treaty, but the United Kingdom, Germany, and France are parties to the agreement. The proposed goal of the criminal court is that it will have international jurisdiction to prosecute war crimes, genocide, and "crimes against humanity."