The Law of War
By: Mian Muhibullah Kakakhel
Senior Advocate, Supreme Court of Pakistan
Law relating to war crimes and the trial of war criminals before various international Courts and Tribunals has attained significant importance during the past more than two decades. The definition of war, war crimes and war criminals need to be re-appraised in view of dynamic and repeated revolutionary changes in the nature of modern day warfare, conduct of war criminals and the devices applied against the enemies or potential enemies. Not only that the conventional dimensions of war are altogether different than the Post-World War belligerency, Proxi wars, clandestine tactical operations have left the war jurists with no choice but to re-asses the present day tactical scenario from subjective approach of the aggressive military powers and objective defensive stance taken by the smaller states.
The USA, UK and NATO alliance is ready to bulldoze any international law relating to war in the name of Pre-emptory attacks, thus violating even the concept of sovereignty of nations. The occupation of Iraq, the Golf War of 1991, the take over of Afghanistan by allied forces, air and ground attacks in Pakistan in the name of war against terrorism needs much to be defined and looked into, by the UNO. The trial of Saddam Hussain, the President of Iraq, the trial of a President of a European country and the military trials in Somalia and other places before international war tribunals have a questionable jurisdiction much less a legitimacy. Suicide bombings, use of heavy and sophisticated bombs through air and use of Military Force in Bosnia, Kosovo, Somalia, Palestine, Iraqi Kurds by Turkish forces and genocide at the hands of occupation forces in the name of democracy or in any other form any where on or around the globe is a subject of concern for U.N.O. White Colour war crimes and financial support of the hitherto un-earthed war criminals need also a definition.
It was rightly said during Gulf war that with the dark clouds of war having shrouded the blue skies of the Gulf, insecurity, once again has knocked at the door of the mankind in General and Gulf States in particular. The third World War has started in which almost the whole world is practically participating. The Globe once again is facing threat of disfiguration with its inhabitants at the peril of extermination.
The laws of War, though involuntarily have to be unshelved, the definition of War, its limitations, the question of putting an end to armed hostilities and the restoration of peace and normality is the subject of discussion wittingly or unwittingly in the mind of every one, War damage and War injuries being feared individually and collectively.
War can be called a contest between two States in which the combatants may like to use different tactics to attain their supremacy over the other for achieving and end, normally a national interest. The most reputed and known measure adopted by a combatant against the other is the use of armed forces on the common pretext of maintaining or restoring peace, the ulterior purpose of each being to vanquish the other and impose its own conditions of peace.
In the modern times the idea of War between States has undergone considerable change. The modern War is not simply a conflict between the armed forces of two states but is also a hostile activity in which the whole nation participates. In this context War is necessarily a multinational or International conduct of a nation hostile in interest to the other, combating its terms which are vital to its national interests or security.
The War from the ancient times have always been regulated by some rules including the universally reputed precept that every thing is fair in love and War. However there is always a commencement time which is preceded by certain supervised events and succeeded by legal and moral efforts including the show of force and the threat of the use of force to come to a conveniently amicable settlement. When the chances of peaceful settlement of disputes is no more in sight and the good offices have failed, it is time for a state either to relinquish its right or to decide to resort to the use of force.
Todays International community understands that War has its devastating effects not only on the lives of a nation or two but is impact on the World Community is also of far reaching consequences. The globe may also be deshaped as a natural result of War. Since, however their have always been rules of every game, War is also not an exception to it.
Their exist laws which regulate Wars from start to their end including the treatment of the prisoners of War. The 1907 Hague convention propounded the rule that a formal declaration was necessary for the start of War and a final warning in the shape of an ultimatum should also be given before resorting to military operations. The states not participating in Warfare were also to be informed of the state of War, it was declared but these rules, as experience and human psychology shows are not only superfluous but made only to be violated as they go against the basic rule of War The surprise attacks. That was the reason for discarding these rules in both the World Wars as well as local Wars between the States. However, the law laid down at the Hague convention of 1907 still holds the ground and a declaration of War is necessary before an attack is launched on the opponent.
War was and still is, in law, a natural function of the state and a prerogative of its uncontrolled and unchecked sovereignty. In Hague conventions an attempt was made to limit and check the uncontrolled power and discretion of a state to wage War at its sweet will for expansion of its territories or for securing obedience from the neighbouring states. The U.N. Charter, League of Nations, pact of Paris, treaty of mutual assistance 1923 and Geneva Protocol all aimed at restricting War as a means of solving International or interstate disputes. The Covenant of the League of Nations restricted the power of a state to wage War and declared that all possible means of amicable settlement must be exhausted before a state may resort to the use of force.
The U.N.O. is an outcome of the fear of the nations from destruction at the hands of a forceful enemy. The armed forces shall not be used save in the common interest says the preamble to the U.N Charter. The States, under the U.N. Charter are bound to settle their disputes peacefully through negotiations, good offices, conciliation, judicial settlement, enquiry or any other peaceful means. The Security Council of the U.N. is empowered to take collective action against a state which has committed aggression or has otherwise committed a breach of International peace. The U.N., like the League of Nations has also failed to achieve its goal and its mandates and resolutions have quite oftenly been disregarded by the mightier states. It has, rather become a tool in the hand so the super powers to sanction the use of force their common enemy. The Kashmir, Palestine, Kuwait, Afghanistan another disputes are the proof of helplessness of the U.N. in the enforcement of its resolution.
The use of the armed forces to settle a dispute by imposing willful conditions on the enemy after over powering him is still a very favourite and commonly used method by the states who can conveniently afford to use it. However this armed conflict is regulated by certain rules and laws to which both the states are a party. These rules of International law are favourable to both of them and serve the mankind rather than the military or political motives of a state.
Armed hostilities according to International law, religion and morality are to be confined to causing damage to the armed forces only. No unarmed Civilian can be injured or made a P.O.W. Women, children, old, sick and infirm persons can not be subjected to the use of force. Private property is not to be confiscated.
The Geneva Convention of 1949 provides for the amelioration of the condition of the wounded and sick belligerents. It is the right of every state to counter attack its enemy and this right extends to the causing of death or injuries to the soldiers of enemy in appropriate cases. The soldiers who surrender voluntarily to the enemy forces or captured after a bloody contest are technically termed as P.O.Ws. Their arrest, conduct and trial are governed by the Geneva Conventions of 1907, 1929 and 1949. The belligerent states under these conventions are duty bound to look after the sick and wounded in the War and provide them with adequate medical facilities. The P.O.Ws can not legally be subjected to torture for extracting confessions or to force them to disclose the location and number of their army units. They can, under the Geneva Convention be asked only their name, rank and number. They have a right to remain silent and have the right to escape from the enemy forces and evade their arrest in case an attempt to recapture them is made.
According to International customs and treaties poisonous weapons, projectiles which cause unnecessary sufferings and atomic bombs are not to be used in the land-Warfare. Water resources and food reserves cannot be poisoned or polluted by the enemy. It has also been provided that during land warfare, undefended cities, villages, areas far away from military installations are not to be inhabited or destroyed. According to International law if an inhabited area is to be attacked for military purposes or its destruction has become necessary then adequate time and warning must be given to its residents for vacating it. During War, the navy plays a pivotal role in paving way for the victory of a state. The belligerent states are entitled to attack and destroy the enemy ships but according to Geneva Convention an attack or seizure of hospital ships, vessels employed in the religious and scientific missions is illegal. Before destroying a ship the crew of the ship is to be afforded adequate opportunity to protect their lives. According to Geneva Submarine protocol and the London naval treaty of 1930 the submarines of the navy cannot but be used within the bounds laid down by the aforementioned laws.
The end of War is normally marked by a declaration to this effect, by the fighting states as a result of a treaty of truce. The trial of War Criminals essentially follows. This aspect of the law of War will be dealt with separately.